Opinion issued April 21, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-01060-CV
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Julia Knox, Appellant
V.
Fiesta Mart, Inc., Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 938057
MEMORANDUM OPINION
In this premises liability case, appellant, Julia Knox, sued Fiesta Mart, Inc. (“Fiesta Mart”) for negligence after she allegedly tripped over a pallet containing a box of watermelons located at the entrance to the store and injured her knee. Fiesta Mart moved for no-evidence summary judgment, contending that Knox could present no evidence that an unreasonably dangerous condition existed or that Fiesta Mart had actual or constructive knowledge of such a condition. The trial court rendered summary judgment in Fiesta Mart’s favor. In two issues on appeal, Knox contends that the trial court erred in rendering summary judgment because (1) she raised a fact issue regarding whether Fiesta Mart had actual or constructive knowledge of the condition on the premises and (2) she raised a fact issue regarding whether the location and placement of the watermelon pallets posed an unreasonable risk of harm.
We affirm.
Background
On April 16, 2007, Knox, her son-in-law Abasi King, and her grandson visited a Fiesta Mart store in southwest Houston. As she walked to the entrance of the store, Knox allegedly tripped over a pallet that held a box containing watermelons. Knox fell to the ground and injured her knee, which eventually required surgery.
Knox sued Fiesta Mart for negligence under a premises liability theory, alleging that Fiesta Mart “negligently permitted the floor to become dangerous” and “negligently or willfully failed to warn [Knox] of the condition of the floor.” Knox specifically alleged that Fiesta Mart failed to “properly inspect and maintain the flooring area in question to discover the dangerous condition,” failed to “maintain the floor in a reasonably safe condition,” failed to “give adequate and understandable warnings to [Knox] of the unsafe condition,” and failed to “remove the watermelon pallet causing the trip and fall.”
Fiesta Mart moved for no-evidence summary judgment. Fiesta Mart contended that Knox could present no evidence that the watermelon pallet posed an unreasonable risk of harm because Knox was “allegedly harmed by nothing more than the mere presence of a watermelon crate.” Knox was not harmed by a watermelon that had fallen off of the pallet but by the pallet itself, and Fiesta Mart argued that no evidence existed that the pallet was unreasonably dangerous. Fiesta Mart also contended that Knox could present no evidence that it had either actual or constructive notice of the condition. Fiesta Mart argued that Knox had no evidence that it actually knew, before her fall, that the watermelon pallet was unreasonably dangerous and, because Knox had no evidence of how long the condition had existed before her fall, Fiesta Mart could not be charged with constructive notice of the condition.
In response to Fiesta Mart’s summary judgment motion, Knox presented the entire transcript of her deposition and an affidavit from King, who was with Knox when she fell. Knox argued that she presented sufficient evidence to raise a fact issue on whether the watermelon pallet posed an unreasonable risk of harm because (1) she had opined in her deposition testimony that the pallet was too close to the entrance door; (2) she testified that the store manager, while speaking with her after her fall, agreed that the pallet was too close to the entrance; and (3) King also averred that the pallet was too close to the door. Knox also argued that she raised a fact issue regarding Fiesta Mart’s knowledge of the condition because store employees had set up the pallet and thus created the allegedly dangerous condition.
In her deposition, Knox testified that she routinely visited this particular Fiesta store and was familiar with its layout. She stated that, as she was walking into the Fiesta, she tripped over a pallet placed by the entrance door and fell to the ground. Knox testified that a large box full of watermelons sat on top of the pallet. During the deposition, Fiesta Mart’s counsel showed Knox a picture of the entrance to the Fiesta, which depicted a box of watermelons resting on a display pallet, and asked her if the picture resembled the entrance on the date of the incident. Knox testified that the picture was different because the watermelon pallet was “closer to the door” on the day of the accident. She stated that “even the manager said [the pallet] was too close [to the door.]” She also testified that, on the day of the incident, the pallet was “older” and “more raggedy” than the pallet in the picture and the box holding the watermelons looked more worn and did not have yellow “warning” arrows on the corners, unlike the watermelon box in the picture. Knox testified that she could not remember if she saw the watermelons before she fell, although she acknowledged that, in her recorded statement made two months after the incident, she stated that she was looking at the watermelons before she fell.
Knox further testified that, after she fell, the Fiesta manager came outside, helped her up, gave her water and a towel, apologized, and gave her a $750 medical voucher. The deposition exhibits, which Knox attached to her summary judgment response, included the picture of the Fiesta entrance that Fiesta Mart’s counsel had shown to Knox during her testimony. The exhibits also included the incident report completed by the manager, which contained the following statement: “The pallet of watermelon[s] is far from the door way—bigger than two basket length[s] from [the] door.”
As additional summary judgment evidence, Knox attached an affidavit from Abasi King, her son-in-law. King averred that “[t]he pallets were located too close to the front entrance door in a high traffic area.” In its summary judgment reply, Fiesta Mart objected to this portion of King’s affidavit on the grounds that this statement was an “unsubstantiated opinion” and was both legally and factually conclusory. The trial court sustained the objection. Knox does not challenge this ruling on appeal.[1]
In its reply, Fiesta Mart argued that Knox’s testimony regarding what the manager said provides no evidence of notice “because it does not address how long [the condition] had allegedly existed prior to the incident” and it “provides evidence only that Fiesta knew of the location of the pallets after the incident, which is not [the] proper inquiry.” Fiesta Mart also argued that Knox cited to no authority that the “placement of an object can make it unreasonably dangerous.”
The trial court rendered summary judgment in favor of Fiesta Mart and this appeal followed.
Standard of Review
We review 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). 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. Tex. R. Civ. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The burden then shifts to the nonmovant 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). The trial court must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a fact issue on the challenged elements. Flameout Design & Fabrication, 994 S.W.2d at 834; see also Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995))). To determine if the nonmovant has raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
When, as here, the trial court’s summary judgment does not state the basis for the court’s decision, we must uphold the judgment if any of the theories advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
Actual or Constructive Knowledge
In her first issue, Knox contends that the trial court erred in rendering summary judgment in favor of Fiesta Mart because her summary judgment evidence raised a fact issue regarding whether Fiesta Mart had actual or constructive knowledge of the location and placement of the watermelon pallets.
Fiesta Mart owed Knox, its invitee, a duty to exercise reasonable care to protect her from dangerous conditions in the store that were either known or reasonably discoverable. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—Houston [1st Dist.] 2005, no pet.). This duty does not, however, make the premises owner an insurer of the invitee’s safety. Gonzalez, 968 S.W.2d at 936; Bendigo, 178 S.W.3d at 114. To recover damages, a plaintiff must prove:
(1) Actual or constructive knowledge of some condition on the premises by the owner/operator;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A premises liability plaintiff satisfies the notice element by establishing that (1) the premises owner created the allegedly dangerous condition; (2) the owner actually knew that the allegedly dangerous condition existed; or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); see also Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 554 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (stating that knowledge can be established by “proof that employees either saw or were told of the harmful condition prior to the plaintiff’s injury”).
A. Actual Knowledge
Actual knowledge “requires knowledge that the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (per curiam). Circumstantial evidence establishes actual knowledge only when it directly or by reasonable inference supports that conclusion. Id. at 415 (citing State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)). When determining if a premises owner has actual knowledge of a condition that presents an unreasonable risk of harm, courts generally consider whether the owner had received reports of prior injuries or reports of the potential danger presented by the condition. Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per curiam)); see also Wal-Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 864 (Tex. App.—San Antonio 2002, no pet.) (“The unidentified customer informed [an employee] of the cooking oil spill, so there is no question that Wal-Mart had actual knowledge of the spill.”).
Knox contends that Fiesta Mart had actual knowledge of the allegedly dangerous condition because Fiesta Mart employees placed the pallet in the entryway, monitored the pallet, and placed more watermelons on the pallet as it became empty. Knox cites the Texas Supreme Court’s decisions in Keetch and Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex. 1976), for the proposition that when store employees create the allegedly dangerous condition, this is circumstantial evidence or an “inference of knowledge” that raises a fact issue. Fiesta Mart responds that Knox’s only evidence of actual knowledge is “the way in which the pallets were placed,” and Knox presented no evidence that “Fiesta was ever told by anyone of the way in which the pallets were placed” or that “Fiesta actually created the condition.” Fiesta Mart also contends that neither Keetch nor Coffee holds that an “inference of knowledge” is a fact question for the jury.
In Rice Food Market, Inc. v. Hicks, 111 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2003, pet. denied), we addressed whether Hicks presented legally and factually sufficient evidence that Rice Food Market had actual knowledge that a sign hanging from a kiosk posed an unreasonable risk of harm. We observed that although the Texas Supreme Court held in Keetch that the fact that a premises owner created a condition “may support an inference of knowledge,” the fact-finder “must still find that the owner or occupier knew or should have known of the condition.” Id. (quoting Keetch, 845 S.W.2d at 265). We noted that Hicks presented no evidence that the sign had fallen before the particular incident at issue, and a Rice employee testified at trial that he was not aware of any similar incidents. Id. We also noted that “there is no evidence in the record that the sign was a dangerous condition from the moment it was installed.” Id. We concluded that Hicks presented no evidence that Rice had actual knowledge that the sign posed an unreasonable risk of harm, and we ultimately reversed the trial court and rendered judgment that Hicks take nothing. Id.
We also addressed, in Lofton v. Marmaxx Operating Corp., whether T.J. Maxx had knowledge that a floor mat placed in front of an exit door by an employee posed an unreasonable risk of harm. No. 01-06-01109-CV, 2008 WL 525678, at *3 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.). We agreed with T.J. Maxx’s assertion that “knowledge that it had placed a floor mat in its foyer is not knowledge that the floor mat presented a hazard.” Id. We noted that Lofton had presented no evidence that other patrons had previously tripped on the mat, that the mat had any defects, that the type of mat used was unusual, or that “[the mat’s] particular construction and placement should have suggested to T.J. Maxx that it presented a prohibitive degree of danger.” Id. We affirmed the summary judgment in favor of T.J. Maxx.
Here, Knox presented no evidence that Fiesta Mart had received reports of prior injuries to customers from tripping over the watermelon pallet or reports of the potential danger presented by the pallet, that there was anything unusual about this watermelon pallet, or that its construction or placement should have suggested to Fiesta Mart that it “presented a prohibitive degree of danger.” See Lofton, 2008 WL 525678, at *3; see also Gilford, 277 S.W.3d at 70; Rice Food Mkt., 111 S.W.3d at 613; Chavez, 81 S.W.3d at 864. Aside from opining, based on a picture of the Fiesta entrance that Fiesta Mart’s counsel showed her during her deposition, that the watermelon pallet was “closer to the door” on the day of her accident than in the picture and stating that an unidentified manager had said that “[the pallet] was too close [to the entrance],” Knox presented no evidence of where the pallet was actually located. We have previously held that knowledge of the mere placement of an object is not knowledge that the object—here, a watermelon display pallet at a grocery store entrance—presented a hazard. See Lofton, 2008 WL 525678, at *3 (holding that knowledge of placement of floor mat in front of store exit is not evidence of knowledge of hazard). We therefore conclude that Knox presented no evidence that Fiesta Mart had actual knowledge that the placement of the watermelon pallet posed an unreasonable risk of harm.
B. Constructive Knowledge
To hold Fiesta Mart liable on the basis that it had constructive knowledge of the allegedly dangerous condition, Knox had to raise a fact issue regarding whether the condition had existed “for a sufficient period of time that [the defendant] had a reasonable opportunity to discover it.” Reece, 81 S.W.3d at 814; CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000). Temporal evidence—evidence of the length of time the dangerous condition existed—is necessary for the fact-finder to reasonably assess the opportunity that the premises owner had to discover the condition. Reece, 81 S.W.3d at 816. “[T]here 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.” Id.
Here, Knox presented no evidence of how long the watermelon pallet was at the particular location by the entrance door before Knox fell. The plaintiff must present some evidence of how long the hazard had existed in order to charge the premises owner with constructive knowledge and impose liability upon it. Id. Because Knox presented no evidence of how long the allegedly dangerous condition of the watermelon pallet had existed before her fall, we conclude that Knox failed to raise a fact issue regarding whether Fiesta Mart had constructive knowledge of the condition. See id.; see also Rice Food Mkt., 111 S.W.3d at 613 (“Hicks failed to present any evidence on how long the sign had been attached to the canvas. The evidence is legally insufficient to support a finding of knowledge.”).
We therefore hold that Knox failed to raise a fact issue regarding whether Fiesta Mart had actual or constructive knowledge that the location of the watermelon pallet posed an unreasonable risk of harm.
We overrule Knox’s first issue.
Unreasonable Risk of Harm
In her second issue, Knox contends that the trial court erred in rendering summary judgment in favor of Fiesta Mart because her summary judgment evidence raised a fact issue regarding whether the location and placement of the watermelon pallets posed an unreasonable risk of harm to Fiesta Mart’s customers.
A condition poses an unreasonable risk of harm if “there is such a probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Wong v. Tenet Hosps. Ltd., 181 S.W.3d 532, 539 (Tex. App.—El Paso 2005, no pet.) (citing Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 341 (Tex. App.—Austin 2000, pet. denied)); see Seideneck v. Cal Bayreuther & Assocs., 451 S.W.2d 752, 754 (Tex. 1970). Foreseeability does not require that the exact sequence of events that produced an injury be foreseeable; rather, only the general danger must be foreseeable. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). The determination of whether a particular condition poses an unreasonable risk of harm is “generally fact specific” and this type of determination “involve[s] issues well suited for a jury.” Wong, 181 S.W.3d at 539 (citing Reliable Consultants, Inc., 25 S.W.3d at 342). There is no “definitive, objective test” to apply to determine whether a condition poses an unreasonable risk of harm. Id. (citing Seideneck, 451 S.W.2d at 754). A condition is not unreasonably dangerous “simply because it is not foolproof.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).
Fiesta Mart relies on the Texas Supreme Court’s decisions in Taylor and H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218 (Tex. 1999) (per curiam), for the proposition that the mere presence of the watermelon pallet, like the presence of a customer sampling display in Resendez and a self-serve soft-drink dispenser in Taylor, is not unreasonably dangerous. In Resendez, the supreme court addressed whether a grape-sampling display constituted an unreasonable risk of harm after a customer slipped near the display. Resendez, 988 S.W.2d at 218. The display at issue contained a bowl of loose grapes that was “level, sitting on ice and recessed about five inches below the table[’]s surface.” Id. The table had a three-inch railing along each edge, the floor of the produce section was non-skid, and floor mats and warning cones were present near the grape display. Id. at 218–19. The court concluded that “the mere fact that a store has a customer sampling display cannot, without more, be evidence of a condition on the premises that poses an unreasonable risk of harm.” Id. at 219 (emphasis added). In so holding, the court distinguished its earlier decision in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), which also involved a grape-sampling display. The Resendez court noted that, in Corbin, “there was more evidence than the mere existence of a display. It was the manner in which Safeway displayed the grapes—in a slanted bin over a linoleum tile floor with no protective floor mat—that created an unreasonable risk of customer falls from grapes falling on the floor.” Id. (citing Corbin, 648 S.W.2d at 296–97). In contrast, in Resendez, “there [was] no evidence that the manner of display created an unreasonable risk.” Id.
In Taylor, the supreme court addressed whether a self-serve soft-drink dispenser, in addition to ice that had fallen from the dispenser and partially melted on the floor, posed an unreasonable risk of harm. 222 S.W.3d at 408. The court noted that Taylor presented no evidence that this dispenser “was set up in such a way that ice on the floor was a greater danger than one would ordinarily encounter with such dispensers, or that customers, though prone to spills, were any more prone around this dispenser.” Id. In response to Taylor’s argument that Brookshire Grocery should have put more mats and warning signs around the dispenser, the court stated that this argument was relevant for whether Brookshire Grocery exercised reasonable care, but it was not evidence that the “dispenser itself was unreasonably dangerous.” Id. In concluding that the dispenser was not an unreasonably dangerous condition, the court observed that “[a] condition is not unreasonably dangerous simply because it is not foolproof.” Id.
Knox contends that “the placement of the pallets and the fact that the pallets were continually being emptied” made the watermelon pallet unreasonably dangerous. Knox presented no evidence in the summary judgment record that the pallet “[was] continually being emptied” or that it was “emptied” at the time of her fall. Furthermore, Knox presented no evidence of where the watermelon pallet was actually located. The manager’s incident report, attached as an exhibit to Knox’s deposition, stated that “[t]he pallet of watermelon[s] is far from the doorway—bigger than two basket length[s] from [the] door.” In response, Knox merely opined, after being shown a picture of the Fiesta entrance that depicted a watermelon pallet clearly not obstructing the doorway, that the pallet was “closer to the door” on the date of her accident. Knox provided no pictorial evidence of the scene of her accident, she made no attempt to diagram the location of the pallet relative to the door on the date of her accident, and she did not offer an estimate of how far away the pallet was from the door. Knox, therefore, has offered no evidence beyond the mere presence of the watermelon pallet in the vicinity of the entrance door to establish that the pallet posed an unreasonable risk of harm. See Resendez, 988 S.W.2d at 219; see also Taylor, 222 S.W.3d at 408. The mere presence of the watermelon display at the entrance to the grocery store is no evidence that the manner of displaying the watermelons was unreasonably dangerous. See Resendez, 988 S.W.2d at 219.
We conclude that Knox failed to raise a fact issue regarding whether the location and placement of the watermelon pallet posed an unreasonable risk of harm to Fiesta Mart’s customers. We therefore hold that the trial court correctly rendered summary judgment in favor of Fiesta Mart.
We overrule Knox’s second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
[1] When the trial court sustains objections to a party’s summary judgment evidence and the party does not attack the merits of that ruling on appeal, we may not consider the stricken evidence when reviewing the summary judgment. See Little v. Needham, 236 S.W.3d 328, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Inglish v. Prudential Ins. Co. of Am., 928 S.W.2d 702, 706 (Tex. App.—Houston [1st Dist.] 1996, writ denied)).