Opinion Issued June 1, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00833-CV
LEONARD EUBANKS, Appellant
V.
PAPPAS RESTAURANTS, INC. and PAPPAS PARTNERS, L.P., Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2004–21000
DISSENTING OPINION
I dissent. In a slip-and-fall case, an owner/operator has a duty to exercise reasonable care to protect its invitees from conditions on its premises (1) that pose an “unreasonable risk of harm”; (2) of which the owner/operator had actual or constructive knowledge; (3) which he did not use reasonable care to reduce or eliminate; and (4) which proximately caused the plaintiff’s injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
Appellant has produced no evidence upon which a jury could base a reasonable conclusion that “mud” or “slime”—words used interchangeably by appellant in the deposition testimony quoted by the majority—on the pavement in appellees’ parking lot next to a flower bed after a rain constituted an unreasonably hazardous condition sufficient to subject appellees to premises liability. Nor could he, in light of the Texas Supreme Court’s holding in M.O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex. 2004). In that case, the plaintiff, Rape, slipped and fell on the pavement outside the dental lab after a rain. Id at 672–73. According to the supreme court, Rape alleged that she parked her car along the side of the business and, as she was walking from her car toward the entrance of the building, she slipped and fell on a “slippery mud substance.” She claimed the substance had accumulated on the parking lot sidewalk. Id. at 672. The supreme court held:
Ordinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm.
Id. at 676. The court reasoned,
Holding a landowner accountable for naturally accumulating mud that remains in its natural state would be a heavy burden because rain is beyond the control of landowners. Most invitees in Texas will encounter natural conditions involving ordinary mud regularly, and accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners.
Id. The circumstances in this case are identical, and the same reasoning applies.
Appellant had the burden of expressly presenting to the trial court any fact issues that defeated summary judgment and presenting any summary judgment proof necessary to establish a fact issue. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Under Rape, appellant could carry this burden only by raising a fact issue, i.e., presenting evidence, that the “substance” he slipped on was not “naturally accumulating mud and dirt.” See Rape, 139 S.W.3d at 676. This he utterly failed to do. As appellee points out in its brief, “No where in the record is there any testimony, any documentation, or any proof, nor in any case cited by EUBANKS, is there any authority, whatsoever, that dirt in a flower bed is not ‘the natural state of dirt.’”
The majority cites the use of the word “slime” in appellee’s employee’s report as “evidence” that raises a fact issue for trial. And appellant likewise states in his brief, “[Y]es, it was an argument based on semantics.” If so, it is an argument appellant loses on the law. Neither a semantic difference in the words appellant used to describe the substance on which he slipped nor a report of what appellant claimed to have slipped on is evidence of what the substance actually was. Appellant himself cites as evidence his own deposition testimony that he slipped on “slimy mud” that “looked like somebody had raked up a bunch of leaves and picked up all the leaves, but kind of left the dirt.” I see no way to characterize this “substance” as anything more than “[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact.” Rape, 139 S.W.3d at 676. Thus, I conclude that appellant slipped on “nothing more than dirt in its natural state,” which, as a matter of law, constitutes no evidence of a hazardous condition that poses an unreasonable risk of harm to an invitee. See id.; see also Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 441, 445 (Tex. App.—Eastland 2003, pet. denied) (holding that “a premises owner/operator does not have a duty to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot because such an accumulation does not constitute an unreasonably dangerous condition”). Accordingly, I would hold that appellees proved their entitlement to summary judgment.
I would affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, dissenting.