Patricia Lowe v. Brookshire Grocery Company

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-20-00043-CV

PATRICIA LOWE, Appellant

V.

BROOKSHIRE GROCERY COMPANY, Appellee

On Appeal from the 62nd District Court
Hopkins County, Texas
Trial Court No. CV43829

Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
 MEMORANDUM OPINION

Patricia Lowe sued Brookshire Grocery Company for premises liability after she tripped

near a crack on the surface of a Brookshire parking lot, fell, and sustained injuries. The trial

court granted Brookshire’s no-evidence and traditional motions for summary judgment,

sustaining Brookshire’s argument that nothing showed it had actual or constructive knowledge of

an unreasonably dangerous condition in the portion of the parking lot where Lowe fell. As a

result, the trial court entered a take-nothing judgment against Lowe.

On appeal, Lowe argues that the trial court erred in granting the summary judgments

because she produced more than a scintilla of evidence on each element of her premises liability

claim and, as a result, Brookshire was not entitled to judgment as a matter of law. We find that

the trial court properly granted Brookshire’s no-evidence motion for summary judgment.

Accordingly, we affirm the take-nothing judgment.

(1) Standard of Review and Relevant Caselaw

“We review the trial court’s summary judgment de novo.” Provident Life & Acc. Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In our review, “we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.” Id. When, as here, “both traditional and no-evidence summary

judgments are reviewed, we look first at the no-evidence motion.” Est. of Grogan, 595 S.W.3d

807, 812 (Tex. App.—Texarkana 2020, no pet.) (citing City of Wolfe City v. Am. Safety Cas. Ins.

Co., 557 S.W.3d 699, 702 (Tex. App.—Texarkana 2018, pet. denied) (citing Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005))).

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 “A no-evidence summary judgment is essentially a pretrial directed verdict. Therefore,

we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as

we apply in reviewing a directed verdict.” Clayton v. Walmart Inc., No. 06-20-00035-CV, 2020

WL 7268585, at *1 (Tex. App.—Texarkana Dec. 11, 2020, no pet.) (mem. op.) (quoting Padron

v. Catholic Diocese, No. 06-19-00087-CV, 2019 WL 1548637, at *3 (Tex. App.—Texarkana

Apr. 10, 2019, no pet.) (mem. op.)) (citing Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502,

506 (Tex. 2002)). “We must determine whether the plaintiff produced any evidence of probative

force to raise a fact issue on the material questions presented.” Id. (quoting Padron, 2019 WL

1548637, at *3 (citing Rodriguez, 92 S.W.3d at 506; Woodruff v. Wright, 51 S.W.3d 727, 734

(Tex. App.—Texarkana 2001, pet. denied)). “The plaintiff will defeat a defendant’s no-evidence

summary judgment motion if plaintiff presented more than a scintilla of probative evidence on

each element of its claim.” Id. (quoting Padron, 2019 WL 1548637, at *3) (citing King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Rhine v. Priority One Ins. Co., 411 S.W.3d

651, 657 (Tex. App.—Texarkana 2013, no pet.)).

“More than a scintilla of evidence exists when the evidence reaches a level enabling

reasonable and fair-minded people to differ in their conclusions.” Petrohawk Props., L.P. v.

Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet. dism’d) (citing Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “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.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

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 “In premises-liability cases, the scope of a landowner’s responsibility turns on the

plaintiff’s status.” Clayton, 2020 WL 7268585, at *1 (quoting Padron, 2019 WL 1548637, at

*3) (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)). It is undisputed

that Lowe was a business invitee. “[G]enerally, a property owner owes invitees a duty to use

ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises

condition about which the property owner knew or should have known.” Id. (quoting Padron,

2019 WL 1548637, at *3) (alteration in original) (quoting Advance Tire & Wheels, LLC v.

Enshikar, 527 S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Austin v.

Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (“A landowner has a duty to exercise

reasonable care to make the premises safe for invitees.”)). “A premises owner’s duty toward its

invitee does not, however, make the owner an insurer of the invitee’s safety.” Id. (quoting

Padron, 2019 WL 1548637, at *3) (quoting Austin, 465 S.W.3d at 203; Wal-Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998)). “Applying the general rule, the Texas Supreme

Court ‘has repeatedly described a landowner’s duty as a duty to make safe or warn against any

concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should

be, aware but the invitee is not.’” Id. (quoting Padron, 2019 WL 1548637, at *4) (quoting

Austin, 465 S.W.3d at 203).

Here, for Brookshire to be liable for Lowe’s injury, Lowe had to prove

(1) that [Brookshire] had actual or constructive knowledge of some condition on
the premises; (2) that the condition posed an unreasonable risk of harm to [Lowe];
(3) that [Brookshire] did not exercise reasonable care to reduce or to eliminate the
risk; and (4) that [Brookshire’s] failure to use such care proximately caused
[Lowe’s] personal injuries.

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Id. at *2 (quoting Padron, 2019 WL 1548637, at *3 (quoting United Scaffolding, Inc. v. Levine,

537 S.W.3d 463, 471–72 (Tex. 2017) (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292,

296 (Tex. 1983)))).

(2) The Summary Judgment Evidence

Brookshire’s summary judgment motions and Lowe’s response both relied on Lowe’s

deposition and the deposition of Coty Hall, an assistant store manager. Ahead of her deposition,

Lowe produced photographs of Brookshire’s parking lot, which showed several cracks in the

asphalt. Lowe testified, however, that she did not take the photographs of the parking lot and

could not identify the portion of the parking lot where she fell in any of the photographs. Lowe

circled a crack in one of the photographs and claimed that, while it was not the crack she “fell

on,” it was similar to it.

In describing the incident, Lowe testified she was looking forward and walking toward

the store while wearing flip flops when she tripped over a crack that “wasn’t visible” because the

color of the pavement was all the same.1 Lowe, who had landed on her left hip, looked back to

see that her right flip flop had come off and “stayed where [she] had tripped.” When asked if a

part of the crack was sunken in, Lowe answered, “Yes . . . . [T]he part closest to my shoe was

sunken in, and the other side was kind of lifted up. Not—not real high, but it was lifted up

higher.” Lowe clarified that her flip flop was not stuck in the crack, but was “right there by the

crack” and that it “wasn’t, like, standing up.” Lowe said she “probably” would have seen the

1
Although Lowe also used the term “broken asphalt,” she clarified that the condition that allegedly caused her fall
“was a crack.”
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crack if she had been looking down. An unidentified man helped her stand up, and she went

back to her car.

Hall testified that he first learned of Lowe’s accident hours later when Lowe’s daughter

reported it to him. Pursuant to Brookshire’s policy, Hall filled out an incident report. Hall said

that areas in a parking lot that were sunken in and not level could be unsafe depending on the

depth of the abnormality. Yet, according to Hall, the parking lot had normal wear and tear and

was “not any . . . worse than any other parking lot.” As a result, Hall testified that cracks in a

parking lot were normal.

As for Brookshire’s safety procedures, Hall testified that employees were trained to

report dangerous conditions to managers, who were required to fill out reports of any such

condition. He added that Brookshire conducted a self-safety audit every month and had general

maintenance schedules and that he would have reported any dangerous condition in the parking

lot. Even so, Hall testified that no reports of dangerous conditions were made. According to

Hall, the parking lot was already on a list to “have a facelift” and get redone, along with other

Brookshire parking lots in different cities.

In addition to deposition testimony, Brookshire relied on Lowe’s discovery responses and

the affidavit of Rodney Reece, the store director since 2010. Lowe’s discovery responses

established that there were no witnesses to her fall and that she had no expert testimony to

support her claims. Reece swore that there were no reported falls in the parking lot since his

tenure, other than Lowe’s fall. Reece had “full operational responsibility over the store” and

“was not aware of any dangerous condition in the parking lot.”

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 In response to Brookshire’s summary judgment evidence, Lowe pointed to the

photographs of other areas of Brookshire’s parking lot and relied on Brookshire’s discovery

responses, which (1) represented that “[t]he parking lot is inspected multiple times per day by

management staff as well as employees whose duties call for them to be in the parking lot” and

(2) admitted “that there was normal wear and tear due to vehicular traffic and exposure to

weather that led to cracks in the asphalt.”

After hearing the parties’ motions and considering the evidence attached to them, the trial

court granted Brookshire’s traditional and no-evidence summary judgment motions.

(3) Lowe Presented No Evidence of an Unreasonably Dangerous Condition

Lowe argues that there are genuine issues of material fact concerning whether Brookshire

had actual or constructive knowledge of a crack in the parking lot that posed an unreasonable

risk of harm. We find that she failed to introduce evidence showing that a crack posed an

unreasonable risk of harm.

The “mere fact that [a plaintiff] slipped does not, by itself, prove that the condition of [a

surface] posed a foreseeable, unreasonable risk of harm.” Ogueri v. Tex. S. Univ., No. 01-10-

00228-CV, 2011 WL 1233568, at *5 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.)

(mem. op.); see Said v. Sugar Creek Country Club, Inc., No. 14-17-00079-CV, 2018 WL

4177859, at *5 (Tex. App.—Houston [14th Dist.] Aug. 31, 2018, pet. ref’d) (mem. op.). “A

condition poses an unreasonable risk of harm for purposes of premises liability when there is a

‘sufficient probability of a harmful event occurring that a reasonably prudent person would have

foreseen it or some similar event as likely to happen.’” Tex. Dep’t of Transp. v. Padron, 591

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S.W.3d 684, 697 (Tex. App.—Texarkana 2019, pet. denied) (quoting City of Killeen v. Cheney,

No. 03-18-00139-CV, 2018 WL 5832088, at *6 (Tex. App.—Austin Nov. 8, 2018, no pet.)

(mem. op.) (quoting Cty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002))). “When

determining whether a harmful event resulting from a condition was probable and foreseeable,

courts often have considered, among other things:

(1) whether the condition was clearly marked, (2) the height of the condition,
(3) whether injuries had occurred in the past, (4) whether other invitees had
complained about the condition, (5) whether the condition was unusual,
(6) whether the construction or placement of the condition would serve as a
warning that the object presented a prohibited degree of danger, (7) whether the
invitee had reasonable alternatives other than to go through the area where the
condition was located, and (8) whether the condition met applicable safety
standards.

Valentine v. ASA Holdings Real Est. Mgmt., No. 09-18-00447-CV, 2020 WL 1173703, at *5

(Tex. App.—Beaumont Mar. 12, 2020, no pet.) (mem. op.) (citing Martin v. Chick-Fil-A, No.

14-13-00025-CV, 2014 WL 465851, at *4 (Tex. App.—Houston [14th Dist.] Feb. 4, 2014, no

pet.) (mem. op.)). “A condition will not be deemed unreasonably dangerous simply because it is

not foolproof.” Said, 2018 WL 4177859, at *3.

Lowe testified that the crack she tripped over was not clearly marked, pointed to a similar

crack, and said that “the part closest to [her] shoe was sunken in, and the other side was kind of

lifted up.”2 Yet, while Lowe said she “fell on,” “tripped over,” or “tripped on” the crack, she did

not testify that the crack was in such condition that she fell “in” it. Instead, she said that her flip

flop “stayed where [she] had tripped” and that she found her flip flop “right there by the crack.”

2
Lowe did not testify that she fell in or on any sunken or elevated area. It is also unclear whether “the other side” in
this portion of her testimony referred generally to a part of the crack she may or may not have encountered, or
whether she was referring to her flipflop.
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 Citing to Cohen v. Landry’s Inc., Lowe argues that her testimony established an

unidentified difference in elevation, which met her burden to produce more than a scintilla of

evidence of an unreasonably dangerous condition. Cohen v. Landry’s Inc., 442 S.W.3d 818, 821

(Tex. App.—Houston [14th Dist.] 2014, pet. denied). However, Cohen is easily distinguished

because the condition in which the plaintiff fell was established and described as a “1/2 to 1 inch

elevation between two abutting sections of sidewalk.” Id. Here, there is no evidence as to the

height of the changed elevation of the unidentified parking lot crack and there were no

photographs of the portion of the parking lot where Lowe tripped. Id. Also, while Lowe

admitted she probably would have seen the crack were she looking down, Cohen presented

expert testimony that “the height of the condition, although a small elevation difference in the

sidewalk, was significant because it was difficult to see,” “creat[ed] a significant trip and fall

hazard,” and “present[ed] a serious and unreasonable risk of pedestrian missteps and falls.” Id.

at 826. No such testimony, expert or otherwise, was presented here. Also, Cohen presented

evidence of safety standards and expert testimony showing that the sidewalk where Cohen

tripped did not meet those standards. Here, there was no evidence of parking lot safety standards

before the trial court and nothing showing that the parking lot did not meet any applicable

standards.3 As a result, this case is not analogous to Cohen.

3
In her brief, Lowe relies on arguments and material not presented to the trial court. “In summary judgment
practice, ‘[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.’” Fitts v. Richards-Smith, No. 06-15-00017-CV, 2016 WL 626220, at
*14 (Tex. App.—Texarkana Feb. 17, 2016, pet denied) (mem. op.) (citing TEX. R. CIV. P. 166a(c); TEX. R. APP. P.
33.1(a)(1); D.R. Horton-Tex., Ltd. v. Markel Intern. Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009)).

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 Rather, this case is akin to Dietz v. Hill Country Restaurants, Inc., 398 S.W.3d 761, 767

(Tex. App.—San Antonio 2011, no pet.). There, Dietz fell on an aggregate walkway that was

more than eighteen years old. Id. The walkway contained five depressions, described as

“‘bootprints’. . . that measured in depth from 0.366 to 0.576 inches.” Id. Dietz stated that “she

stepped into one of the ‘holes’ in the walkway, which ‘threw’ her off balance and caused her to

fall.” Id. The San Antonio Court of Appeals determined that, in light of evidence that no one

else had ever fallen as a result of the walkway or had complained that it was unsafe, the

circumstances of Dietz’s fall created “no more than a mere surmise or suspicion of an

unreasonable risk of harm.” Id.

To succeed, Lowe had to present more than a scintilla of evidence that the crack created a

“sufficient probability of a harmful event occurring that a reasonably prudent person would have

foreseen.” Padron, 591 S.W.3d at 697. Lowe made no argument as to whether the construction

or placement of the condition would serve as a warning that the crack presented the prohibited

degree of danger. There was no photograph of the crack, no evidence of a separation in the
4
crack, and no testimony establishing the size of a height difference in the pavement. While

there was evidence that the parking lot was on a list of parking lots that would receive a

“facelift,” there was no evidence that the decision to redo the parking lot was based on any

dangerous condition, much less an unreasonably dangerous one. Hall and Reece both said that

no one else suffered injuries in the parking lot and that no one had complained about its

condition since their employment. Brookshire employees testified that, while the parking lot had

4
The photograph of a crack that Lowe described as similar to the one she tripped on did not clearly depict any
separation in the crack, broken asphalt, or change in elevation.
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ordinary and normal cracks due to normal wear and tear, there was nothing in the parking lot that

could be described as unusual or unreasonably dangerous. See Huy v. Trejo, No. 05-17-01356-

CV, 2018 WL 4214700, at *3 (Tex. App.—Dallas Sept. 5, 2018, no pet.) (mem. op.) (finding no

evidence of an unreasonably dangerous condition where, among other things, “the cracks in the

pavement were not of a size that [defendant] would repair, but were instead ‘normal’ cracks”).

Because Lowe did not introduce evidence as to the size of the crack, whether she had a

reasonable alternative route to the store could not be measured. Also, Lowe introduced no

evidence of whether the crack failed to meet safety standards. As in Dietz, the fact of Lowe’s

own accident created “no more than . . . a mere surmise or suspicion of an unreasonable risk of

harm.” Dietz, 398 S.W.3d at 767; see Valentine, 2020 WL 1173703, at *6 (upholding a no-

evidence summary judgment in a case where plaintiff fell on “unstable,” unattached, flush

concrete that “shift[ed] back and forth” because she “produced no evidence about how long the

condition had existed, whether it had caused prior injuries or falls, whether the condition was

unusual, whether the condition presented a prohibited degree of danger, whether [she] had

reasonable alternatives other than to go through the area where the condition was located, and

whether the condition met applicable safety standards”); Said, 2018 WL 4177859, at *5.

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 Because we find that Lowe presented no more than a scintilla of evidence that the crack

involved in the incident posed an unreasonable risk of harm, we affirm the trial court’s summary

judgment.

Josh R. Morriss, III
Chief Justice

Date Submitted: March 24, 2021
Date Decided: April 27, 2021

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