Showing posts with label premises liability. Show all posts
Showing posts with label premises liability. Show all posts
Thursday, March 4, 2010
Spoliation no reason to overturn summary judgment for grocery store in slip & fall premises liability lawsuit
First Court of Appeals, in opinion by Justice Elsa Alcala, rejects spoliation of evidence as ground to preclude summary judgment for the defendant in premises liability lawsuit. Defendant store did not preserve complete video recording of the slip & fall incident upon which the lawsuit was based. While acknowledging that the tape recording would be relevant, the Court opines that absence of the footage did not harm Defendant.
Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala) (trial court's refusal to find spoliation by Defendant and take-nothing judgment affirmed)
FROM THE OPINION BY JUSTICE ELSA ALCALA
Applicable Law Concerning Spoliation
The act of spoliation refers to destruction of evidence relevant to a case. Buckeye Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex. App.--Dallas 2007, no pet.). Trial courts have broad discretion in taking measures to address spoliation of evidence that include "measures ranging from a jury instruction on the spoliation presumption to, in the most egregious cases, death penalty sanctions." Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). "As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case." Id.
The inquiry as to whether a spoliation sanction or presumption is justified requires a court to consider (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. Adobe Land Corp., 236 S.W.3d at 357; Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.--Houston [1st Dist.] 1998, no pet.).
* * *
Prejudice
The final step of our inquiry focuses on whether Randalls's spoliation prejudiced Clark's ability to present his case. See Schooley, 984 S.W.2d at 666 (citing Trevino, 969 S.W.2d at 954-55 (Baker, J., concurring); Adobe Land Corp., 236 S.W.3d at 360. "[T]he spoliating party is [ ] free to attempt to show that . . . no prejudice" resulted from the negligently destroyed evidence." Trevino, 969 S.W.2d at 958 (Baker, J., concurring). In making this determination, we look to a variety of circumstances such as (a) the harmful effect of the missing evidence, and (b) the availability of other evidence to take the place of the missing information. Adobe Land Corp., 236 S.W.3d at 360; Schooley, 984 S.W.2d at 667.
a. Harmful Effect of Missing Evidence
Having already determined the footage not preserved by Randalls was relevant to the premises liability lawsuit, we must address how the failure to preserve it has prejudiced Clark's lawsuit. In determining whether a party was harmed by spoliated evidence, we consider "whether the destroyed evidence supports key issues in the case." Trevino, 969 S.W.2d at 958 (Baker, J., concurring).
The trial court could reasonably have determined that the missing videotape footage was not evidence that supports key issues in the case because the key issue here is whether there was liquid on the floor, and the camera was unable to capture whether there was liquid on the floor and when it may have gotten there. For example, if the tape showed an employee performing a walk-though one hour before the event, that would not reveal whether the employee saw the liquid because the tape of Clark's fall does not show any visible liquid. Similarly, if the tape showed no employee was seen performing a walk-through one hour before the event, a walk-though could still have occurred at that area with the employee standing nearby but outside of the camera range. The trial court could have reasonably determined that because the counter blocks the camera's visibility of the floor where Clark fell, the camera would not have captured the liquid falling on the floor. Although the tape is relevant, the trial court could have reasonably determined it had limited value in the case because the tape is unclear, it does not show any liquid on the part of the floor that can be seen on the tape, and due to the angle of the camera and the height of the counter, it does not show the part of the floor where Clark fell.
As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location. But nothing in our record suggests that another person slipped there before Clark. The pharmacist, the other people working at the pharmacy counter, and the store manager do not mention any other complaints about people slipping there. The trial court could reasonably have determined that the tape would not show anyone else slipping at the location before Clark because the other evidence in the case fails to suggest that occurred.
b. Availability of Other Evidence
As Randalls points out, there was evidence other than the tape to show the condition of the floor. The pharmacist and Clark could each testify about the condition of the floor when Clark fell. The store manager described the walk-through procedures to check the condition of the floor in the hour preceding the fall.
Even if the tape had been produced and the walk through was not visible on the tape, the walk though could have been conducted outside of camera range, given that the stationary camera captured only a limited range. As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location, but the tape is not the only evidence that would show that, and the people working in that area did not mention any complaints about people slipping there. The trial court, therefore, could have reasonably determined the unavailable footage was cumulative of other competent evidence that Clark could use in place of the destroyed evidence. See Trevino, 969 S.W.2d at 958 (Baker, J., concurring).
The trial court could have reasonably determined Randalls was not negligent in its failure to preserve more of the tape of the events preceding the fall. Importantly, Clark never asked Randalls to preserve the tape until after the tapes had been destroyed pursuant to Randalls policy. Randalls, sua sponte, preserved the tape in the anticipation of litigation by Clark. Randalls had to independently surmise how much of the footage Clark would want, without the benefit of any instructions or request from Clark.
We conclude that based on the arguments and evidence presented, the trial court could have reasonably determined the videotaped footage would not show whether liquid was on the floor, how long it was on the floor, whether the walk through was done, and when it was done. Based on the arguments and evidence presented in this case, we hold the trial court did not abuse its discretion by finding no prejudice resulted from Randalls's failure to preserve the footage of events preceding the fall. See, e.g., Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 n.13 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (discretion not abused in denying spoliation instruction where evidence showed log books were disposed of pursuant to company policy and missing data not shown to be harmful).
We hold the trial court did not abuse its discretion in refusing to grant a spoliation finding. Because the challenge to the spoliation finding is the sole ground presented in this appeal to challenge the summary judgment ruling, we affirm the trial court's take-nothing summary judgment. See Adobe Land Corp., 236 S.W.3d at 357 (citing Aguirre, 2 S.W.3d at 457); Sowell, 263 S.W.3d at 38.
We overrule Clark's sole issue.
Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala)
(premises liability suit, spoilation of evidence claim rejected; defendant did not preserve complete video
recording of slip & fall incident in store)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Elsa Alcala
01-08-00732-CV Ralph Clark v. Randalls Food
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson
Thursday, May 22, 2008
Res Ipsa Loquitur defined and ruled out in slip & fall case
Wet bathroom floor did not "speak for itself" as a evidence of managerial negligence and was under the control of the injured guest for the night, not the management. Ergo any injury sustained in guest's fall was not the hotel's fault. No evidence summary judgment for defendant affirmed.
Carlson v. Remington Hotel Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Nuchia)(premises liability, res ipsa loquitur)
MEMORANDUM OPINION
In one issue, appellants, Lori and Shannon Carlson challenge the trial court's no-evidence summary judgment in favor of appellees, Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake Hotel, New Clear Lake Hotel, d/b/a Nassau Bay Hilton, and New Clear Lake Group, GP, LLC, (collectively "the hotel"). We affirm.
Background
On February 23, 2005, Lori Carlson, her husband, daughter, and mother checked into two adjoining rooms at the hotel. According to Lori, when she awoke the next morning, she stepped off the carpet into the bathroom and fell, hitting her head and her side between the bathtub and the toilet. Lori alleged that the carpeting next to the bathroom was "soaked with water." She testified that no one else used the bathroom that morning "that I'm aware of" and "as far as I know." Appellants alleged that the cause of the wet carpet was "air conditioner condensate" leaking from the nearby air conditioner.
Danny Gentry, the hotel employee who investigated appellants' complaint, testified that he went to appellant's room and saw that the floor was "noticeably wet." He said that appellants told him they did not know where the water came from. When asked his opinion of the source of the water on the floor, he said, "It could have been the bathtub overflowed. It could have been the toilet overflowed. It could have been the sink. I mean, none of those appeared to me to be overflowing, though . . . It's possible it could have ran down the inside of the wall." He testified that he did not see the air conditioner leaking and he did not inspect the pipe or the auxiliary pipe to see if either were clogged. He said that before the air conditioner drain line would leak, condensate would leak from the auxiliary line and drip directly into the bathtub. He said that the auxiliary line was not dripping.
Appellants brought a premises-liability suit against the hotel. Appellees filed a no-evidence motion for summary judgment, which the trial court granted on March 5, 2007. The trial court denied appellants' motion for new trial.
In their sole issue on appeal, appellants assert that the trial court erred in granting the hotel's no-evidence motion for summary judgment. Specifically, appellants argue that res ipsa loquitur applies because, they say, they have ruled out all causes except a leaking air conditioner and the hotel had control over the air conditioner's maintenance.
Standard of Review
We follow the well-known standard of review for Rule 166a(i) summary judgments. Tex. R. Civ. P. 166a(i) ("After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial."); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.).
Res Ipsa Loquitur
Res ipsa loquitur is a doctrine that permits the fact-finder to infer negligence in the absence of direct proof. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). A plaintiff who successfully invokes the doctrine of res ipsa loquitur can survive a no-evidence challenge on the issue of negligence. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974).
Res ipsa loquitur applies only when (1) the character of the accident is such that it would not ordinarily occur without negligence and (2) the instrumentality causing the injury was under the management and control of the defendant. Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982).
The first factor, which supports the inference of negligence, can be proven with general knowledge or expert testimony that the accident would not ordinarily occur in the absence of negligence. See Mobil Chem. Co., 517 S.W.2d at 252; see Trans Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).
The second factor connects the negligence to the defendant. Mobil Chem. Co., 517 S.W.2d at 251. "The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door." Id. When the plaintiff's evidence shows only that it is equally probable that the negligence was that of another, the second factor has not been proven. See Marathon Oil Co., 632 S.W.2d at 574.
Discussion
Appellees filed a no-evidence motion for summary judgment, alleging that appellants had no evidence that the hotel had actual or constructive knowledge of the alleged dangerous condition on the premises, i.e., the water on the floor near the bathroom. To prevail on a premises liability claim, a plaintiff must prove:
(1) that the owner had actual or constructive knowledge of some condition on the premises;
(2) that the condition posed an unreasonable risk of harm;
(3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and
(4) that the owner's failure to use reasonable care proximately caused the plaintiff's injuries.
Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996).
"Thus, the existence of actual or constructive knowledge of a premises defect is a threshold requirement for such a claim." Id. "
A slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, 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." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
In response to appellees' no-evidence motion for summary judgment, appellants provided deposition testimony from Lori Carlson and from Danny Gentry, the hotel's employee. Neither deposition provides direct evidence that appellees caused, actually knew of, or had a reasonable opportunity to discover the water on the carpet in the hotel room. Thus, appellants provided no evidence that appellees had actual or constructive notice of the alleged, dangerous condition, i.e., the wet carpet.
However, appellants argue that res ipsa loquitur applies. Because appellants had no expert testimony, they needed to show that it is generally known that carpet adjacent to a bathroom would not become wet in the absence of negligence. We are aware of no such general knowledge, and appellant has not shown that proposition to be true. Moreover appellants have not shown that the wet carpet, i.e., the instrumentality that caused the accident, was in the control of appellees. See Marathon Oil Co., 632 S.W.2d at 573 (holding that plaintiff must show the instrumentality causing the injury was under management and control of defendant).
In fact, it was not; it was in appellant's control overnight.
Accordingly, we hold that res ipsa loquitur does not apply to this case.
We overrule appellants' only issue.
Conclusion
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Lori Carlson and Shannon Carlson v. Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake; New Clear Lake Hotel d/b/a Nassau Bay Hilton; and New Clear Lake Group, GP, LLC Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown
Attorney(s): Clay Dugas , Mike Jacobellis J. Preston Wrotenbery Kevin D. Jewell
Carlson v. Remington Hotel Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Nuchia)(premises liability, res ipsa loquitur)
MEMORANDUM OPINION
In one issue, appellants, Lori and Shannon Carlson challenge the trial court's no-evidence summary judgment in favor of appellees, Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake Hotel, New Clear Lake Hotel, d/b/a Nassau Bay Hilton, and New Clear Lake Group, GP, LLC, (collectively "the hotel"). We affirm.
Background
On February 23, 2005, Lori Carlson, her husband, daughter, and mother checked into two adjoining rooms at the hotel. According to Lori, when she awoke the next morning, she stepped off the carpet into the bathroom and fell, hitting her head and her side between the bathtub and the toilet. Lori alleged that the carpeting next to the bathroom was "soaked with water." She testified that no one else used the bathroom that morning "that I'm aware of" and "as far as I know." Appellants alleged that the cause of the wet carpet was "air conditioner condensate" leaking from the nearby air conditioner.
Danny Gentry, the hotel employee who investigated appellants' complaint, testified that he went to appellant's room and saw that the floor was "noticeably wet." He said that appellants told him they did not know where the water came from. When asked his opinion of the source of the water on the floor, he said, "It could have been the bathtub overflowed. It could have been the toilet overflowed. It could have been the sink. I mean, none of those appeared to me to be overflowing, though . . . It's possible it could have ran down the inside of the wall." He testified that he did not see the air conditioner leaking and he did not inspect the pipe or the auxiliary pipe to see if either were clogged. He said that before the air conditioner drain line would leak, condensate would leak from the auxiliary line and drip directly into the bathtub. He said that the auxiliary line was not dripping.
Appellants brought a premises-liability suit against the hotel. Appellees filed a no-evidence motion for summary judgment, which the trial court granted on March 5, 2007. The trial court denied appellants' motion for new trial.
In their sole issue on appeal, appellants assert that the trial court erred in granting the hotel's no-evidence motion for summary judgment. Specifically, appellants argue that res ipsa loquitur applies because, they say, they have ruled out all causes except a leaking air conditioner and the hotel had control over the air conditioner's maintenance.
Standard of Review
We follow the well-known standard of review for Rule 166a(i) summary judgments. Tex. R. Civ. P. 166a(i) ("After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial."); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.).
Res Ipsa Loquitur
Res ipsa loquitur is a doctrine that permits the fact-finder to infer negligence in the absence of direct proof. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). A plaintiff who successfully invokes the doctrine of res ipsa loquitur can survive a no-evidence challenge on the issue of negligence. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974).
Res ipsa loquitur applies only when (1) the character of the accident is such that it would not ordinarily occur without negligence and (2) the instrumentality causing the injury was under the management and control of the defendant. Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982).
The first factor, which supports the inference of negligence, can be proven with general knowledge or expert testimony that the accident would not ordinarily occur in the absence of negligence. See Mobil Chem. Co., 517 S.W.2d at 252; see Trans Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).
The second factor connects the negligence to the defendant. Mobil Chem. Co., 517 S.W.2d at 251. "The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door." Id. When the plaintiff's evidence shows only that it is equally probable that the negligence was that of another, the second factor has not been proven. See Marathon Oil Co., 632 S.W.2d at 574.
Discussion
Appellees filed a no-evidence motion for summary judgment, alleging that appellants had no evidence that the hotel had actual or constructive knowledge of the alleged dangerous condition on the premises, i.e., the water on the floor near the bathroom. To prevail on a premises liability claim, a plaintiff must prove:
(1) that the owner had actual or constructive knowledge of some condition on the premises;
(2) that the condition posed an unreasonable risk of harm;
(3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and
(4) that the owner's failure to use reasonable care proximately caused the plaintiff's injuries.
Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996).
"Thus, the existence of actual or constructive knowledge of a premises defect is a threshold requirement for such a claim." Id. "
A slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, 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." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
In response to appellees' no-evidence motion for summary judgment, appellants provided deposition testimony from Lori Carlson and from Danny Gentry, the hotel's employee. Neither deposition provides direct evidence that appellees caused, actually knew of, or had a reasonable opportunity to discover the water on the carpet in the hotel room. Thus, appellants provided no evidence that appellees had actual or constructive notice of the alleged, dangerous condition, i.e., the wet carpet.
However, appellants argue that res ipsa loquitur applies. Because appellants had no expert testimony, they needed to show that it is generally known that carpet adjacent to a bathroom would not become wet in the absence of negligence. We are aware of no such general knowledge, and appellant has not shown that proposition to be true. Moreover appellants have not shown that the wet carpet, i.e., the instrumentality that caused the accident, was in the control of appellees. See Marathon Oil Co., 632 S.W.2d at 573 (holding that plaintiff must show the instrumentality causing the injury was under management and control of defendant).
In fact, it was not; it was in appellant's control overnight.
Accordingly, we hold that res ipsa loquitur does not apply to this case.
We overrule appellants' only issue.
Conclusion
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Lori Carlson and Shannon Carlson v. Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake; New Clear Lake Hotel d/b/a Nassau Bay Hilton; and New Clear Lake Group, GP, LLC Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown
Attorney(s): Clay Dugas , Mike Jacobellis J. Preston Wrotenbery Kevin D. Jewell
Wednesday, March 12, 2008
From Judge to Justice: Jeff Brown delivers his first appellate opinion
Former 55th District Court Judge Jeffrey Brown was appointed by Governor Rick Perry to the Fouteenth Court of Appeals court seat vacated by Justice Harvey Hudson just in time to run as incumbent in 2008 general election.
Writing for the three-judge panel, Justice Jeff Brown affirms judgment for Defendant in a memo opinion. Single-issue appeal was from a garden-variety premises liability suit filed in county court at law: Ronald Grayson v. Joseph Anselmo, Individually and D/B/A Joe's Barber Shop, No. 14-06-01073-CV (Tex.App.- Houston, Mar. 13, 2008)(Opinion by Justice Brown ) (premises liability suit, slip and fall cases)
Full style: Ronald Grayson v. Joseph Anselmo, Individually and D/B/A Joe's Barber Shop
Appeal from County Civil Court at Law No 1 of Harris County
Trial court judge: R. Jack Cagle
Attorneys: Scott C. Lannie and Sarah Stryker Flournoy
M E M O R A N D U M O P I N I O N
Ronald Grayson appeals a take-nothing judgment in favor of Joseph Anselmo d/b/a Joe's Barber Shop. Grayson alleged that a premises defect caused him to fall on Anselmo's property and sustain a personal injury. In a single issue, Grayson contends that the evidence was factually insufficient to support the judgment. We affirm.
I
In October 2004, Joe Anselmo opened a barbershop in a mobile home in Crosby. Before opening, Anselmo and his son built a wooden ramp to the door of the barbershop. On November 4 or 5, 2004, Ronald Grayson visited the barbershop to discuss selling some tractor tires to Anselmo. As he was leaving the shop, Grayson received a call on his cell phone and stepped outside onto the ramp.
The remaining facts are disputed. Grayson testified that as he took the call he leaned on the ramp's wooden railing. The railing separated from its support post and he fell to the ground, injuring his shoulder. Grayson also testified that immediately after his fall, Anselmo repaired the railing by re-attaching it to the support post. Grayson introduced one photograph showing that a single board attached the rail to the post.
Anselmo tells a different story. He remembered Grayson visiting the barbershop and taking a call outside on the ramp, but testified that the railing did not break and Grayson did not fall. Anselmo further testified that not one but two boards supported the railingCone in front of the support post and one behind. Both he and Grayson submitted pictures of the railing showing two boards supporting the railing. Nevertheless, Grayson insists that when he leaned on the rail, only one board supported it. He contends Anselmo added the second board sometime after his fall.
Grayson sued Anselmo alleging that he was injured when he fell from the ramp. Grayson alleges Anselmo controlled the premises and knew or should have known of an unreasonably dangerous condition that proximately caused Grayson's injuries. After a bench trial, the trial court found Grayson did not meet the burden of proof on his premises-liability claim and ordered that he take nothing.
II
In a single issue, Grayson argues the trial court erred in rendering a take-nothing judgment. As sub-issues, Grayson argues (1) the evidence conclusively established that Anselmo gave false testimony, (2) the great weight and preponderance of the evidence established the essential elements of Grayson's premises-liability claim, (3) there was no evidence of contributory negligence that could otherwise support a take-nothing judgment, and (4) the uncontroverted evidence established that the incident proximately caused Grayson's injuries.
A
Although Grayson cites in his brief the standards of review for both legal and factual sufficiency of the evidence, he asks only that this court remand to the trial court for a new trial. Grayson does not ask this court to render judgment in his favor. Therefore, we will only address whether the evidence was factually sufficient to support the trial court's findings. See Alstan Corp. v. Board of Admin., 713 S.W.2d 130, 132 (Tex. App.CAustin 1986, writ ref'd n.r.e.) (stating that factual-sufficiency points require remand for new trial as opposed to legal-sufficiency points, which require reversal and rendition of judgment).
The trial court did not issue any findings of fact or conclusions of law. Therefore, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Parties may challenge the legal and factual sufficiency of these implied factual findings. Id. When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co ., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App. Houston [14th Dist.] 2001, pet. denied). We may not substitute our judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
B
Grayson initially argues that the trial court erred in entering a take-nothing judgment because Anselmo gave false testimony under oath. The record reflects the parties sharply disagreed on whether the railing at the barbershop broke, whether Grayson fell from the ramp, and whether he was injured as a result of a fall. The parties also dispute whether Grayson was an invitee or a licensee on the property. Because the trial court filed no findings of fact and conclusions of law, we presume it found any disputed fact in favor of its judgment. See American Realty Trust, Inc. v. JDN Real EstateBMcKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.-Dallas 2002, pet. denied).
However, for purposes of reviewing whether Anselmo breached a duty to Grayson, we will assume that a fall from the ramp proximately caused Grayson's injuries. We will also assume Grayson's status as an invitee.
Assuming Grayson was his invitee, Anselmo owed a duty to exercise reasonable care to protect him from dangerous conditions known or discoverable to Anselmo. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). To recover from Anselmo, Grayson must prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator, (2) the condition posed an unreasonable risk of harm, (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk, and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
The first element, actual or constructive knowledge of some condition on the premises by the owner or operator, is the key point in this case. Grayson argues that because Anselmo built the ramp, he created the condition and is charged with knowledge of its condition. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge, but the fact finder still must find that the owner or occupier knew or should have known of the condition. Id. at 265.
Liability for knowledge of a potentially harmful condition can be established by proof that (1) the owner/operator caused the harmful condition, (2) the owner/operator saw or was told of the harmful condition before the plaintiff's injury, or that (3) the harmful condition was present for so long that it should have been discovered in the exercise of reasonable care. Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 554 (Tex. 2002).
Grayson does not rely on direct evidence but argues there was factually sufficient circumstantial evidence that Anselmo had actual or constructive notice of the dangerous condition. Grayson contends that because the manner in which Anselmo constructed the ramp and railing created the dangerous condition, Anselmo therefore had constructive knowledge of it. At trial, there was conflicting evidence as to how Anselmo constructed the railing. He and his son built the ramp about one month before Grayson's visit. Anselmo testified that the railing consisted of two boards attached to support posts, with one board on the outside of the post and the other on the inside of the post. Grayson testified that only one board was attached to the post. The trial court admitted several photographs into evidence showing the railing constructed with two boards and one photograph showing the railing constructed with one board. No evidence was introduced to show that anyone else had been injured on the ramp, that the railing had ever failed or given any indication that it was not sturdy, or that anyone had pointed out that the railing was dangerously constructed.
The Texas Supreme Court has held that the inference of actual or constructive knowledge is a fact question for the trier of fact. See Keetch, 845 S.W.2d at 266; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 542 (Tex. 1976). In Keetch, the plaintiff slipped and fell crossing a slippery area on the floor created by Kroger's spraying of "Green Glo" shine on plants in its floral department. 845 S.W.2d at 263. The trial court submitted the case on a premises‑liability theory. The jury found the slippery spot constituted an unreasonable risk of harm to Keetch, but failed to find that Kroger knew or should have known of the condition. Id. at 264. The supreme court affirmed the judgment, rejecting the plaintiff's argument that Kroger's creation of the condition meant that Kroger had actual knowledge as a matter of law. Id. Although it declined to create an automatic-liability rule, the court noted: "The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge." Id. at 265.
In Coffee v. F.W. Woolworth Co., the plaintiff was injured when she fell over a low‑lying, empty platform intended to hold merchandise. 536 S.W.2d at 540. At trial, there was a dispute whether Woolworth and its employees were aware of the empty platform, but the jury found Woolworth, through its employees, had constructive knowledge of the dangerous condition. Id. The court of appeals reversed the trial court, finding that the record was devoid of any direct evidence that Woolworth had actual knowledge that the platform was empty. Coffee v. F.W. Woolworth Co., 526 S.W.2d 793, 795 (Tex. Civ. App.-Corpus Christi 1975), rev'd, 536 S.W.2d 539. The Texas Supreme Court reversed the court of appeals, reasoning thatCbecause the store's policy was to avoid letting its platforms become empty from normal‑course customer purchasesCthe jury could have reasonably inferred that the platform was empty because store personnel created the condition when changing displays; therefore, the defendants had actual notice. Coffee, 536 S.W.2d at 540B41. In discussing Coffee, the court in Keetch concluded that "[t]he fact that [the defendant] created the condition was circumstantial evidence of knowledge." Keetch, 845 S.W.2d at 266.
Coffee and Keetch stand for the proposition that a fact finder may, but need not, infer that a defendant had actual knowledge of a dangerous condition that it created. It is within the fact finder's province to decide whether the circumstances justify inferring actual knowledge against the creator of a dangerous condition. See id.; see also Coffee, 536 S.W.2d at 540-41.
Reviewing all of the evidence in a neutral light, we find the trial court's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Even if we accept Grayson's testimony as true, that only one board attached the railing to its support post, the implied finding that Anselmo did not have constructive knowledge of a dangerous condition is not against the great weight and preponderance of the evidence.
In his remaining sub-issues, Grayson alleges there was no evidence of contributory negligence and the uncontroverted evidence established that the incident proximately caused his injuries.
Because we have determined that the evidence is factually sufficient to support the trial court's finding that Anselmo did not have constructive knowledge of a dangerous condition, we need not address contributory negligence or proximate cause.
We overrule Grayson's issue and affirm the trial court's judgment.
/s/ Jeff Brown
Justice
Judgment rendered and Memorandum Opinion filed March 11, 2008.
Panel consists of Justices Yates, Guzman, and Brown.
Monday, March 3, 2008
Premises Liability: Summary judgment for store affirmed
Lofton v. Marmaxx Operating Corp. (Tex.app.- Houston [1st Dist.] Feb. 28, 2008)(Hanks) (premises liability suit)
Opinion by Justice George C. Hanks
Panel: Justices Nuchia, Hanks and Higley
Style: Debra Lofton v. Marmaxx Operating Corp., Individually and d/b/a T. J. Maxx
Trial court: 113th District Court of Harris County (Judge Patricia Hancock)
Disposition: Summary Judgment for defendant store affirmed
MEMORANDUM OPINION
In this trip and fall case, Debra Lofton appeals the trial court’s grant of Marmaxx Operating Corp. d/b/a T.J. Maxx’s (“T.J. Maxx”) summary judgment. In her sole issue on appeal, Lofton argues that the trial court erred in granting T.J. Maxx’s motion for summary judgment as there is sufficient evidence of a genuine issue of material fact on each element of her cause of action. We affirm.
Background
On May 4, 2004, Lofton shopped in the T.J. Maxx department store, purchased her items, and was walking out of the store when she tripped on the floor mat in front of the exit. Lofton broke her elbow.
Lofton brought a premises liability suit against T.J. Maxx, asserting that T.J. Maxx was negligent for (1) creating the dangerous condition, (2) maintaining the dangerous condition, (3) failing to correct and make safe the dangerous condition, and (4) failing to warn its customers of the dangerous condition, all of which resulted in her injuries. T.J. Maxx filed a no-evidence motion for summary judgment asserting that Lofton had no evidence that (1) T.J. Maxx had any actual knowledge of any defect, (2) T.J. Maxx had any constructive knowledge of any defect, (3) there was a defect, (4) any alleged defect posed an unreasonable risk of harm, (5) T.J. Maxx failed to exercise reasonable care to reduce or eliminate any alleged risk, and (6) T.J. Maxx’s alleged failure was the proximate cause of Lofton’s injuries. Lofton responded to the motion and attached her affidavit, the accident report, a recorded claims statement, T.J. Maxx’s responses to requests for production, and excerpts from the deposition of Leila Marie Baines, T.J. Maxx’s assistant manager. Baines testified that the mats are kept clean and are placed in the area “to make sure they are in the area just in case it rained.” The mats are mostly for people when they are entering the store. Baines also testified that she did not believe Lofton tripped on the mat. Lofton contended that T.J. Maxx created a fact question as to the location of the incident. She further contended that “notice is not an element of [her] claim because [her] claim is based on the actions of [T.J. Maxx] and its employees by creating the hazard.” The placement of the mat created a hazardous or unreasonably dangerous condition. Lofton’s response concluded by arguing that the following arguments prevent the granting of T.J. Maxx’s summary judgment:
(1) the subject mat was placed in an area of the store where invitees would not expect it to be;
(2) because the weather was sunny on the date of the incident, the mat should have been removed since there was no need for the stated purpose of the mat; and
(3) the condition of the mat was more likely to cause someone to trip and fall.
T.J. Maxx objected to Lofton’s summary judgment evidence. T.J. Maxx specifically complained of two statements in Lofton’s affidavit—“It was dangerous for TJ Maxx to have the mat in the exit area.” “The placement of the mat at the exit created an unreasonably dangerous condition.”—because the statements were self-serving, legally conclusory, factually conclusory, and not based on personal knowledge. T.J. Maxx further objected to Lofton’s reference to photographs, which were not attached to the affidavit.
The trial court sustained T.J. Maxx’s objections to Lofton’s summary judgment evidence and granted a take-nothing judgment. Lofton does not contest the ruling on the summary judgment evidence, but appeals the grant of summary judgment.
Standard of Review
Summary judgment is a question of law. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003). Thus, we review a trial court’s summary judgment decision de novo. Id. at 215. A party moving for no-evidence summary judgment must assert only that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. See id. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). 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, 124 S.W.3d at 172. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. As with a traditional summary judgment, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
If the trial court has granted summary judgment without specifying the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Premises Liability
It is undisputed that Lofton was T.J. Maxx’s invitee. As such, T.J. Maxx owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store, known or discoverable by T.J. Maxx. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). However, an owner-operator’s duty toward its invitee does not make the owner-operator an insurer of the invitee’s safety. Id. To recover damages in a slip-and-fall case, 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.
Gonzalez, 968 S.W.2d at 264; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).
The owner-operator is considered to have constructive knowledge of any premises defects or other dangerous conditions that a reasonably careful inspection would reveal. Corbin, 648 S.W.2d at 295.
Because an invitee’s suit against a premises owner-operator is a simple negligence action, the standard of care required of the owner-occupier toward its invitees is the ordinary care that a reasonably prudent person would exercise under the same or similar circumstances. Id. at 295. The owner-operator’s liability to an invitee depends, not on whether a specific set of facts or a specific breach of duty is established, but, on whether the owner-operator acted reasonably in light of what it knew or should have known about the risks associated with the condition on the premises. Id.
The core of the duty depends on actual or constructive knowledge of an unreasonably dangerous condition. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
Lofton argues that T.J. Maxx had constructive knowledge of the mat’s placement in front of the exit door because one of its employees had put the mat there. T.J. Maxx responds that “knowledge that it had placed a floor mat in its foyer is not knowledge that the floor mat presented a hazard.”
We agree.
Lofton presented no evidence that T.J. Maxx had received prior complaints or that the floor mat or its location created an unreasonably dangerous condition. Lofton’s affidavit created some evidence that she tripped on the mat in the T.J. Maxx store, but she offered no evidence that anyone had previously tripped on the mat, that the mat had any defects, that the type of mat was unusual, or that its particular construction and placement should have suggested to T.J. Maxx that it presented a prohibitive degree of danger. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754–55 (Tex. 1970). Accordingly, there was no evidence that the mat presented an unreasonable risk of harm.
We overrule Lofton’s sole issue.Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Opinion by Justice George C. Hanks
Panel: Justices Nuchia, Hanks and Higley
Style: Debra Lofton v. Marmaxx Operating Corp., Individually and d/b/a T. J. Maxx
Trial court: 113th District Court of Harris County (Judge Patricia Hancock)
Disposition: Summary Judgment for defendant store affirmed
MEMORANDUM OPINION
In this trip and fall case, Debra Lofton appeals the trial court’s grant of Marmaxx Operating Corp. d/b/a T.J. Maxx’s (“T.J. Maxx”) summary judgment. In her sole issue on appeal, Lofton argues that the trial court erred in granting T.J. Maxx’s motion for summary judgment as there is sufficient evidence of a genuine issue of material fact on each element of her cause of action. We affirm.
Background
On May 4, 2004, Lofton shopped in the T.J. Maxx department store, purchased her items, and was walking out of the store when she tripped on the floor mat in front of the exit. Lofton broke her elbow.
Lofton brought a premises liability suit against T.J. Maxx, asserting that T.J. Maxx was negligent for (1) creating the dangerous condition, (2) maintaining the dangerous condition, (3) failing to correct and make safe the dangerous condition, and (4) failing to warn its customers of the dangerous condition, all of which resulted in her injuries. T.J. Maxx filed a no-evidence motion for summary judgment asserting that Lofton had no evidence that (1) T.J. Maxx had any actual knowledge of any defect, (2) T.J. Maxx had any constructive knowledge of any defect, (3) there was a defect, (4) any alleged defect posed an unreasonable risk of harm, (5) T.J. Maxx failed to exercise reasonable care to reduce or eliminate any alleged risk, and (6) T.J. Maxx’s alleged failure was the proximate cause of Lofton’s injuries. Lofton responded to the motion and attached her affidavit, the accident report, a recorded claims statement, T.J. Maxx’s responses to requests for production, and excerpts from the deposition of Leila Marie Baines, T.J. Maxx’s assistant manager. Baines testified that the mats are kept clean and are placed in the area “to make sure they are in the area just in case it rained.” The mats are mostly for people when they are entering the store. Baines also testified that she did not believe Lofton tripped on the mat. Lofton contended that T.J. Maxx created a fact question as to the location of the incident. She further contended that “notice is not an element of [her] claim because [her] claim is based on the actions of [T.J. Maxx] and its employees by creating the hazard.” The placement of the mat created a hazardous or unreasonably dangerous condition. Lofton’s response concluded by arguing that the following arguments prevent the granting of T.J. Maxx’s summary judgment:
(1) the subject mat was placed in an area of the store where invitees would not expect it to be;
(2) because the weather was sunny on the date of the incident, the mat should have been removed since there was no need for the stated purpose of the mat; and
(3) the condition of the mat was more likely to cause someone to trip and fall.
T.J. Maxx objected to Lofton’s summary judgment evidence. T.J. Maxx specifically complained of two statements in Lofton’s affidavit—“It was dangerous for TJ Maxx to have the mat in the exit area.” “The placement of the mat at the exit created an unreasonably dangerous condition.”—because the statements were self-serving, legally conclusory, factually conclusory, and not based on personal knowledge. T.J. Maxx further objected to Lofton’s reference to photographs, which were not attached to the affidavit.
The trial court sustained T.J. Maxx’s objections to Lofton’s summary judgment evidence and granted a take-nothing judgment. Lofton does not contest the ruling on the summary judgment evidence, but appeals the grant of summary judgment.
Standard of Review
Summary judgment is a question of law. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003). Thus, we review a trial court’s summary judgment decision de novo. Id. at 215. A party moving for no-evidence summary judgment must assert only that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. See id. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). 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, 124 S.W.3d at 172. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. As with a traditional summary judgment, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
If the trial court has granted summary judgment without specifying the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Premises Liability
It is undisputed that Lofton was T.J. Maxx’s invitee. As such, T.J. Maxx owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store, known or discoverable by T.J. Maxx. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). However, an owner-operator’s duty toward its invitee does not make the owner-operator an insurer of the invitee’s safety. Id. To recover damages in a slip-and-fall case, 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.
Gonzalez, 968 S.W.2d at 264; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).
The owner-operator is considered to have constructive knowledge of any premises defects or other dangerous conditions that a reasonably careful inspection would reveal. Corbin, 648 S.W.2d at 295.
Because an invitee’s suit against a premises owner-operator is a simple negligence action, the standard of care required of the owner-occupier toward its invitees is the ordinary care that a reasonably prudent person would exercise under the same or similar circumstances. Id. at 295. The owner-operator’s liability to an invitee depends, not on whether a specific set of facts or a specific breach of duty is established, but, on whether the owner-operator acted reasonably in light of what it knew or should have known about the risks associated with the condition on the premises. Id.
The core of the duty depends on actual or constructive knowledge of an unreasonably dangerous condition. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
Lofton argues that T.J. Maxx had constructive knowledge of the mat’s placement in front of the exit door because one of its employees had put the mat there. T.J. Maxx responds that “knowledge that it had placed a floor mat in its foyer is not knowledge that the floor mat presented a hazard.”
We agree.
Lofton presented no evidence that T.J. Maxx had received prior complaints or that the floor mat or its location created an unreasonably dangerous condition. Lofton’s affidavit created some evidence that she tripped on the mat in the T.J. Maxx store, but she offered no evidence that anyone had previously tripped on the mat, that the mat had any defects, that the type of mat was unusual, or that its particular construction and placement should have suggested to T.J. Maxx that it presented a prohibitive degree of danger. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754–55 (Tex. 1970). Accordingly, there was no evidence that the mat presented an unreasonable risk of harm.
We overrule Lofton’s sole issue.Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
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