COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-297-CV
LOTTIE HUNNICUTT APPELLANT
V.
DALLAS/FORT WORTH APPELLEE
INTERNATIONAL AIRPORT
BOARD, A POLITICAL SUBDIVISION
OF THE CITY OF DALLAS AND
THE CITY OF FORT WORTH
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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The trial court granted summary judgment for Appellee Dallas/Fort Worth
International Airport Board, a Political Subdivision of the City of Dallas and the
City of Fort Worth (“DFW”) (Appellee claims that it is actually a unit of local
1
… See Tex. R. App. P. 47.4.
government, not a subdivision) on the premises liability action brought by
Appellant Lottie Hunnicutt. In two issues, Hunnicutt argues that she was an
invitee while at DFW and that she provided sufficient evidence of constructive
knowledge of a premises defect to create a material issue of fact. Because we
hold that the trial court did not err by granting summary judgment, we affirm.
Background Facts
On November 21, 2004, while at DFW to catch a flight, Hunnicutt
sustained injuries when she lost her balance and fell while riding an escalator.
In 2006, she brought this suit against DFW for premises liability, alleging that
the escalator “jerked,” causing her fall.
DFW filed a traditional motion for summary judgment, alleging that
Hunnicutt was a licensee, not an invitee; that the escalator was not
unreasonably dangerous; and that DFW had no actual knowledge of the
allegedly dangerous condition. DFW further argued that even if Hunnicutt
raised a fact issue on whether she was an invitee, DFW had no constructive
knowledge of the condition. DFW also filed a no-evidence summary judgment
motion, alleging that there was no evidence that Hunnicutt was an invitee, that
the escalator posed an unreasonable risk of harm, or that DFW had actual or
constructive knowledge of the allegedly dangerous condition.
2
Hunnicutt filed a response arguing that the airlines collect a “Passenger
Facility Charge” from airline passengers and remit those fees to DFW, which
uses the fees to pay for certain capital projects. Accordingly, Hunnicutt argued,
she paid to use the premises, raising a fact issue as to whether she was an
invitee. She also argued that her evidence raised a fact issue as to whether
DFW knew or should have known that the escalator had defective rollers and
posed an unreasonable risk of harm. The trial court granted summary judgment
without specifying the grounds. Hunnicutt then filed this appeal.
Standard of Review
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense.2 The trial court must grant the motion unless
the nonmovant produces summary judgment evidence that raises a genuine
issue of material fact.3 The nonmovant must specifically identify the evidence
2
… Tex. R. Civ. P. 166a(i).
3
… See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).
3
relied upon to raise an issue of fact; the trial court is not required “to wade
through a voluminous record to marshal a respondent’s proof.” 4
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion.5 If the nonmovant
brings forward more than a scintilla of probative evidence that raises a genuine
issue of material fact, then a no-evidence summary judgment is not proper. 6
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of
rule 166a(i).7 If the appellants failed to produce more than a scintilla of
evidence under that burden, then there is no need to analyze whether appellee’s
summary judgment proof satisfied the less stringent rule 166a(c) burden. 8
4
… See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 408 (Tex.
App.—Tyler 2008, no pet.); see also Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App.—San Antonio 2006, no pet.); Tex. R. Civ. P. 166a(i) & cmt.
(“To defeat a motion made under paragraph (i), ... [a nonmovant’s] response
need only point out evidence that raises a fact issue on the challenged
elements.”).
5
… Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
6
… Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
7
… Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
8
… Id.
4
Analysis
In Hunnicutt’s second issue, she argues that she produced sufficient
evidence showing that DFW had actual or constructive knowledge of a
premises defect to defeat DFW’s summary judgment motion. In its no-evidence
motion, DFW argued that it is a unit of local government entitled to sovereign
or governmental immunity unless that immunity has been waived under the
Texas Torts Claims Act (“TTCA”). Under the TTCA, in a premises defect case,
a governmental unit owes the claimant only the duty that a private person owes
to a licensee, “unless the claimant pays for the use of the premises.” 9 A
private property owner is liable to a licensee for defects on the premises only
if the property owner has actual knowledge of the defects.10 If the claimant
pays for the use of the premises, then the claimant is treated as an invitee.11
A private property owner is liable to an invitee for premises defects of which
the owner has actual knowledge and for defects of which the owner has
9
… Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon 2005 &
Supp. 2008).
10
… City of Dallas v. Thompson, 210 S.W.3d 601, 602–03 (Tex. 2006);
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.
1992).
11
… Tex. Parks & Wildlife Dep’t v. Davis, 988 S.W.2d 370, 374 (Tex.
App.—Austin 1999, no pet.); M.D. Anderson Hosp. & Tumor Inst. v. Felter,
837 S.W.2d 245, 247 (Tex. App.—Houston [1st Dist.] 1992, no writ).
5
constructive knowledge, that is, defects the owner would have discovered from
a reasonable inspection.12
The parties dispute whether Hunnicutt paid to use the premises and was
therefore an invitee. But if DFW had no actual or constructive knowledge of
the condition that caused Hunnicutt’s injuries, it is not liable to her even if she
was an invitee.13
Knowledge that escalator rollers will need to be repaired or replaced after
use has a direct relationship to the reasonableness of the care exercised by
DFW.14 But knowledge that escalator rollers can deteriorate over time is not
knowledge that the rollers are a condition that presents an unreasonable risk of
harm.15
Hunnicutt pointed to no evidence in the record showing or raising a fact
issue as to whether DFW actually knew that the escalator had defective rollers
before her fall. Thus, DFW is liable to her only if it had constructive knowledge
and she was an invitee.
12
… CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000);
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813 (Tex. 2002).
13
… See CMH Homes, 15 S.W.3d at 102–03.
14
… See id. at 102.
15
… See id.
6
Constructive knowledge has a temporal element; to show constructive
knowledge, a plaintiff must show that the condition had existed long enough
for the owner to have had a reasonable opportunity to discover it in the
exercise of ordinary care.16 Although what constitutes a reasonable time for
discovery varies from case to case, “there must be some proof of how long the
hazard was there before liability can be imposed on the premises owner for
failing to discover and rectify, or warn of, the dangerous condition.” 17
In her response to the no-evidence motion, Hunnicutt pointed to the
deposition of Robert Alford, a DFW employee whose job at the time of
Hunnicutt’s accident, included performing maintenance on DFW’s escalators
and the expert report of Robert Creak, an elevator and escalator consultant, as
evidence of DFW’s constructive knowledge. Alford testified that he replaced
some track rollers on the escalator in question on November 22, 2004, the day
after Hunnicutt’s accident; that he believed that broken track rollers could cause
a step to be unstable; and that he did not believe that an escalator would “jerk”
if properly maintained. In no part of the deposition testimony provided and
16
… See Reece, 81 S.W.3d at 814; Wal-Mart Stores, Inc. v. Diaz, 109
S.W.3d 584, 589 (Tex. App.—Fort Worth 2003, no pet.); see also CMH
Homes, 15 S.W.3d at 102 (declining to limit the temporal element of premises
liability to slip-and-fall cases).
17
… Reece, 81 S.W.3d at 816.
7
pointed out by Hunnicutt did Alford testify about how long the rollers were
defective before the accident. Alford did not testify about any maintenance
performed on the escalator before the accident.
In his expert report, Creak stated that, in his opinion, the step rollers on
the escalator were not being properly maintained in accordance with industry
standards and that, as a result, the three rollers replaced on November 22 were
more probably than not defective when Hunnicutt’s accident occurred. He
further stated that it was “possible” that one of the defective rollers was on the
step on which Hunnicutt was standing when she fell.
With respect to the inspection methods used by DFW, Creak stated that
the two methods of inspection used by the maintenance crew were deficient.
Under one method, the crew would check the steps by looking at the steps
from the lower pit while the steps were moving, which Creak stated would give
the technician “less than one second” to observe a step and its trail rollers pass
by his line of vision. With the second method, the crew would ride each step
to test for movement on the step, which Creak stated would “not guarantee
that a defective roller would be in the right position to be detected at the exact
time that the step [was] being checked.” Instead, Creak stated, a “much more
effective and thorough method” would be to remove each step from the step
band. Creak asserted that nothing in the records of the service history provided
8
to him or in deposition testimony of a DFW technician, also provided to him,
indicated that this was done. Creak stated that “industry standard and practice
for escalator maintenance provides for an annual clean down and inspection
that includes removal and a condition check of all step bodies and their rollers.”
Absent from Creak’s report are any statements about how long a roller
typically lasts or what additional inspection methods might constitute
reasonable inspections between the annual industry-standard inspections.
Accordingly, even considering Creak’s report, an escalator could be properly
inspected on January 1 of a year, but if rollers became defective at any time
during the year after that inspection, even following industry standards, this
defective state would not be discovered by an inspector until the following
yearly inspection.
Hunnicutt contends that if DFW had reasonably inspected the escalator
by inspecting the escalator in accordance with industry standards, the defective
rollers should have been discovered. The problem with this statement is that
without evidence of when the rollers became defective, no one can say whether
DFW could have discovered the problem and remedied it prior to her accident.
In other words, stating that DFW could have discovered the problem by
inspecting the escalator in a manner other than it did presumes that the problem
existed and was discoverable when the inspection occurred.
9
There is no evidence of when the problem developed. And accordingly,
even if DFW had inspected the escalator in the manner suggested by Creak at
its last inspection of the escalator, if the problem had not yet developed, DFW
could not have discovered it and fixed it. If there is no evidence that DFW had
a reasonable opportunity to discover and fix the problem, there is no evidence
that DFW had constructive knowledge that the problem existed.18
In her reply brief, Hunnicutt asserts that length of time is only one manner
in which constructive knowledge can be established and points to Keetch v.
Kroger Co. 19 for the proposition that a property owner can have constructive
knowledge of a dangerous condition if the property owner created the
condition. The supreme court in Keetch stated that an owner’s creation of a
dangerous condition is circumstantial evidence of knowledge of the condition,
but “the jury still must find that the owner or occupier knew or should have
known of the condition.” 20
The supreme court has held that a plaintiff may recover by showing that
the defendant either “actually knew” of the dangerous condition or “if a
18
… See Reece, 81 S.W.3d at 816.
19
… 845 S.W.2d 262, 265 (Tex. 1992).
20
… Id. at 265.
10
reasonable inspection would have revealed that the unit was no longer safe.” 21
But the court has not held that failure to inspect demonstrates that the property
owner created the condition.22
The dangerous condition alleged in this case was the defective rollers, not
the escalator itself. There is no evidence that DFW placed defective rollers in
the escalator or that DFW otherwise created the condition. Rather, the claim
is that the rollers deteriorated or somehow became defective and that DFW
should have discovered their condition. An owner is not liable for deterioration
unless it actually knew or by reasonable inspection would have discovered the
deterioration.23 Here, the report stating that DFW failed to reasonably inspect
does not help Hunnicutt because (1) according to Creak, a reasonable
investigation occurs once a year, (2) there is no evidence as to when the rollers
became defective, and therefore, (3) there is no evidence that conducting such
21
… See CMH Homes, 15 S.W.3d at 102.
22
… Id. (holding there was no evidence that property owner failed to
inspect as often as it reasonably should have and no evidence that dangerous
condition had existed for a sufficient time that property owner had constructive
notice of the condition); Fort Brown Villas III Condo. Assoc, Inc. v. Gillenwater,
No. 07-1028, 2009 WL 1028047, at *4 (Tex. Apr. 17, 2009) (holding there
was no evidence that property owner actually knew of the dangerous condition
of a lounge chair, that it had failed to reasonably inspect the chair, or that the
dangerous condition on the chair existed for any length of time prior to the
accident).
23
… CMH Homes, 15 S.W.3d at 101–03.
11
an inspection would have allowed DFW to discover the problem and remedy it.
Even if Creak had stated that reasonable inspection means taking the steps off
of the elevator every day (which he did not), to defeat summary judgment,
there must still have been some evidence that the rollers became defective at
such a time that the condition would have been discoverable upon proper
inspection.
Because there is no evidence that DFW had constructive knowledge of
the defective rollers, we hold that the trial court did not err by granting
summary judgment for DFW. Accordingly, we overrule Hunnicutt’s second
issue and do not reach her first issue.24
Conclusion
Having overruled Hunnicutt’s second issue, which is dispositive, we
affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: July 30, 2009
24
… See Ford Motor Co., 135 S.W.3d at 600.
12