Opinion issued August 20, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00195-CV
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RITA J. PATTERSON, Appellant
V.
LANDRY’S SEAFOOD INN & OYSTER BAR-KEMAH D/B/A BABIN’S
SEAFOOD HOUSE, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 980841
MEMORANDUM OPINION
Appellant, Rita J. Patterson, sued appellee, Landry’s Seafood Inn & Oyster
Bar-Kemah d/b/a Babin’s Seafood House (“Babin’s”), under a premises defect
theory. Babin’s filed a no-evidence motion for summary judgment, and the trial
court granted it, dismissing all of Patterson’s claims. Patterson appeals the trial
court’s grant of summary judgment, arguing that (1) the trial court’s grant of no-
evidence summary judgment was erroneous because there was more than a scintilla
of evidence raising genuine issues of material fact on each element of her claim;
and (2) the trial court erred in granting summary judgment by ruling that
Patterson’s evidence was insufficient to create a fact issue.
We affirm.
Background
On December 18, 2008, Patterson dined at Babin’s Seafood House in Kemah
and fell on a set of brick stairs as she was leaving. She sued Babin’s for premises
liability, alleging that a defect in a brick on the staircase caused her to fall,
resulting in injuries that included bruises and scrapes to her knee, hip, and hand.
Babin’s moved for no-evidence summary judgment, arguing that Patterson
had failed to produce any evidence raising a genuine issue of material fact to
support any of the elements of her premises liability cause of action. In her
response, Patterson argued that her own deposition testimony presented more than
a scintilla of evidence that the dangerous condition—the deteriorated or defective
brick—existed long enough to give Babin’s a reasonable opportunity to discover it.
She also argued that her testimony offered more than a scintilla of evidence to
establish causation and damages.
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Patterson relied on her deposition and some photographs of the staircase.
Patterson described the fall:
I was coming down the steps, and it’s down towards the end part, and
I was holding on the rail [running down the center of the staircase]
and one of the steps had a pivot, a broken brick, with a hole that was
almost to the side, close to the rail, and my heel caught in that hole
and I fell.
She also testified that the “brick was moving” and “the little chipped part in it
would give in when you stepped on it,” so that she “got tripped up on the brick by
[her] heel being inside a broken brick.” Patterson “fell on [her] right knee and
[her] right hip and leg and arm.” She also stated that she put her hand out, and,
although she could not remember which one, “one of them got hurt.” She testified
that, as a result of her fall, she had “big bruises, knots” on her hand, knee, and hip
and that “[her] hand swelled up, [her] knee swelled up.” She stated that she did not
speak to anyone at Babin’s after her fall.
Patterson stated that, after she left Babin’s, she and her husband went to
another restaurant named Molly’s. As she was leaving Molly’s, Patterson fell
again because it was dark and she did not see the last step. She fell into a picnic
table and “possibly” hit the cement ground. Patterson testified that, as a result of
this fall, she suffered a broken nose, a cut on her eyebrow that required stitches,
and a black eye.
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That night, Patterson testified that she was bleeding from the cut over her
eye and was in “a lot of pain.” She went the emergency room the next morning for
treatment. She was treated for the cut over her eye and her broken nose. Doctors
also performed x-rays, including an x-ray of her knee, and told her to alternate ice
and heat on her hip and knee. She missed one day of work after her accident, then
missed several more following surgery to repair her broken nose.
Babin’s attorney questioned Patterson about the condition of the staircase at
Babin’s when she fell. Patterson stated that there was a crack and a hole: “When a
brick cracks, it’s like cement, and down in the corner here, mortar, the brick-ish
stuff kind of gives away and it turns into chalk and it just disintegrates.” Patterson
“couldn’t [estimate the size of the hole] in inches” but it was “possibly” about the
size of a penny. Her own attorney also questioned her regarding the condition of
the brick:
[Attorney]: [H]ow long would you say that [the brick that caused the
fall has] been in that condition?
[Patterson]: To my estimate, I’d say a good two months or so because
like I said, the brick—the—I don’t know the exact word
that you use, the cement or the mortar or whatever bricks
[are] made out [of], it was all crumbly.
[Attorney]: Uh-huh. And would you expect a restaurant to find
something like that, you know, in that period of time.
[Patterson]: Yes, sir.
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Babin’s attorney followed up by clarifying that Patterson did not “have any
firsthand knowledge that that’s the condition the brick’s been in.” Patterson
replied, “No ma’am. That was just a guess.” Patterson also testified that she did
not have any firsthand knowledge about how long the brick had been in that
condition. Patterson also presented two photographs that she testified were
photographs of the steps outside Babin’s taken by her husband on the day after her
fall. However, the photographs included in the record did not clearly demonstrate
the alleged defect in the brick.
The trial court granted summary judgment, and this appeal followed.
Standard of Review
An appellate court reviews de novo the trial court’s ruling on a summary
judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). When the trial court does not specify the grounds
for its grant of summary judgment, the reviewing court must affirm the summary
judgment if any of the theories presented to the court and preserved for appeal are
meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
After an adequate time for discovery, a party may move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of a claim on which the adverse party bears the burden of proof at trial.
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TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009). The burden then shifts to the non-movant to produce evidence raising a
genuine issue of material fact on the elements specified in the motion. TEX. R.
CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
A no-evidence summary judgment is essentially a directed verdict granted
before trial; thus, we apply a legal-sufficiency standard of review. See City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (“[T]he test for legal
sufficiency should be the same for summary judgments, directed verdicts,
judgment notwithstanding the verdict, and appellate no-evidence review.”).
Accordingly, a proper no-evidence summary judgment must be affirmed when the
record shows one of the following: (1) there is no evidence on the challenged
element; (2) the evidence offered to prove the challenged element is no more than
a scintilla; (3) the evidence establishes the opposite of the challenged element; or
(4) the court is barred by law or the rules of evidence from considering the only
evidence offered to prove the challenged element. Id. at 810. “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.” Forbes Inc. v. Granada Biosciences, Inc.,
124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists when
the evidence “rises to a level that would enable reasonable and fair-minded people
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to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997).
Evidence does not exceed a scintilla if the trier of fact would have to guess
whether a vital fact exists. City of Keller, 168 S.W.3d at 813. Circumstantial
evidence may be used to establish a material fact, but it “must transcend mere
suspicion.” Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001). Evidence that is
so slight as to make any inference a guess is in legal effect no evidence. Id. at 148;
see also Foreman v. Whitty, 392 S.W.3d 265, 274 (Tex. App.—San Antonio 2012,
no pet.) (holding that evidence that is mere surmise or suspicion does not amount
to more than scintilla of evidence and is, therefore, no evidence).
Premises Defect
When the injured party is an invitee, as here, the elements of a premises
defect claim are: (1) that the owner or occupier have actual or constructive
knowledge of a condition on the premises; (2) that the condition posed an
unreasonable risk of harm; (3) that the owner or occupier did not exercise
reasonable care to reduce or eliminate the risk; and (4) that the owner or occupier’s
failure to use such care proximately caused the plaintiff’s injury. CMH Homes,
Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
“The duty owed by an owner or occupier of a premises to an invitee is not
that of an insurer.” Id. at 101 (citing Wal–Mart Stores, Inc. v. Gonzalez, 968
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S.W.2d 934, 936 (Tex. 1998)). In other words, the condition is not unreasonably
dangerous simply because it is not foolproof. Brinson Ford, Inc. v. Alger, 228
S.W.3d 161, 163 (Tex. 2007). Rather, “the duty owed is to exercise reasonable
care to protect against danger from a condition on the land that creates an
unreasonable risk of harm of which the owner or occupier knew or by the exercise
of reasonable care would discover.” Daenen, 15 S.W.3d at 101. The core of the
duty depends on actual or constructive knowledge of a dangerous condition that a
reasonable inspection would reveal. Id. Thus, an owner or occupier is not liable
for deterioration of its premises unless it knew of or by reasonable inspection
would have discovered the deterioration. Id.
Courts generally consider whether the premises owner has received reports
of prior injuries or reports of the potential danger presented by the condition when
determining whether the owner had actual knowledge of the condition. Univ. of
Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008). Alternatively,
constructive knowledge can be established by a showing that the condition had
existed long enough for the owner or operator to have discovered it upon
reasonable inspection. Daenen, 15 S.W.3d at 102–03.
Patterson argues on appeal that the trial court’s grant of no-evidence
summary judgment was erroneous because there was more than a scintilla of
evidence raising genuine issues of material fact on each element of her claim and
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that the trial court erred in granting summary judgment by ruling that Patterson’s
evidence was insufficient to create a fact issue. In its no-evidence motion for
summary judgment, Babin’s argued, in part, that Patterson had presented no
evidence that Babin’s knew or should have known about a dangerous condition on
the brick stairway.
Patterson does not allege that Babin’s had actual knowledge of any damage
to the bricks on the stairway. Thus, she was required to show that the condition
had existed long enough for Babin’s to have discovered it upon reasonable
inspection. See Daenen, 15 S.W.3d at 102–03. Patterson argues that her
deposition testimony adequately raised a fact issue because she “testified that the
degraded condition of the mortar surrounding the brick indicated the brick had
been in a defective state for an extended period of time” and because she
“submitted pictures that a jury could use to make their own determination
regarding the credibility of Patterson’s testimony and the length of time the brick
had been broken.”
Patterson testified that she fell because the “brick was moving” and “the
little chipped part in it would give in when you stepped on it,” so that she “got
tripped up on the brick by [her] heel being inside a broken brick.” She described
the crack and hole in the brick: “When a brick cracks, it’s like cement, and down in
the corner here, mortar, the brick-ish stuff kind of gives away and it turns into
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chalk and it just disintegrates.” Patterson was unable to estimate the size of the
hole but agreed that it was “possibly” about the size of a penny. She made an
“estimate” that the brick had been in that condition “a good two months or so
because like I said, the brick—the—I don’t know the exact word that you use, the
cement or the mortar or whatever bricks [are] made out [of], it was all crumbly,”
but she also agreed that this estimate was “just a guess” and that she did not have
any firsthand knowledge about how long the brick had been in that condition.
We disagree that this evidence satisfied Patterson’s burden to produce more
than a scintilla of evidence raising a genuine issue of material fact on the elements
specified in the motion. See TEX. R. CIV. P. 166a(i); Mack Trucks, 206 S.W.3d at
582. Her testimony about the condition of the brick is speculative and indefinite—
she testified that the hole was “possibly” the size of a penny and described it only
as “crumbly” without being specific regarding its exact condition. Her general
statement that “[w]hen a brick cracks, it’s like cement, and down in the corner
here, mortar, the brick-ish stuff kind of gives away and it turns into chalk and it
just disintegrates” does not clearly describe the actual brick she alleged was
involved in her fall. Furthermore, Patterson’s “estimate” or “guess” that the brick
had been damaged “a good two months” was speculative and did not “transcend
mere suspicion.” See Lozano, 52 S.W.3d at 149; see also Gonzalez, 968 S.W.2d at
936–37 (holding that plaintiff’s testimony that slippery substance “seemed like it
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had been there a while” was mere speculation and was legally insufficient because
it was equally likely that substance had been dropped on floor short time earlier
and was contaminated quickly by customer traffic in store). This testimony is not
evidence under Texas Rule of Civil Procedure 166a(f). See TEX. R. CIV. P. 166a(f)
(“Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”).
Thus, her evidence is so slight as to make any inference that Babin’s knew or could
have discovered the condition of the brick by reasonable inspection a guess, and
thus, it is, in legal effect, no evidence. See Lozano, 52 S.W.3d at 148; Foreman,
392 S.W.3d at 274.
We conclude that Patterson failed to raise a genuine issue of material fact,
and, thus, the trial court did not err in granting Babin’s summary judgment. See
City of Keller, 168 S.W.3d at 823; Forbes Inc., 124 S.W.3d at 172. We overrule
her issues on appeal.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle. Justice Sharp concurring in
the judgment only.
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