Annie East v. Southwest Cimm's Inc. D/B/A Burger King 1002 A/K/A Cimm's Incorporated

Opinion issued August 28, 2014.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-13-00046-CV

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ANNIE EAST, Appellant

V.

SOUTHWEST CIMM’S INC. D/B/A BURGER #1002 A/K/A CIMM’S

INCORPORATED, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Case No. 997701

DISSENTING OPINION

Today the Court holds that affidavit evidence that there was a “dirty liquid

substance” on an “extremely dirty” and “slippery” floor of a restaurant that

“looked like it had not been cleaned for several days” is adequate to defeat a

premises owner’s no-evidence summary judgment motion challenging the

constructive knowledge element of a slip-and-fall premises liability claim. Because

I believe Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998),

requires holding that East provided no temporal evidence from which a fact-finder

could assign constructive knowledge, I respectfully dissent.

Temporal Evidence is Required

East has the burden to prove that the store had actual or constructive

knowledge of a dangerous condition on the premises to prevail on her premises

liability claim. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). East could

meet this burden through evidence that store employees (1) placed a substance on

the floor; (2) actually knew that a substance was on the floor; or (3) had a

reasonable opportunity to discover the substance on the floor because, more likely

than not, it existed long enough for the employees to have discovered it. Wal-Mart

Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

East had no evidence of actual knowledge and, therefore, needs to adduce

more than a scintilla of evidence from which constructive knowledge could be

imposed. See Bendigo v. City of Houston, 178 S.W.3d 112, 113–15 (Tex. App.—

Houston [1st Dist.] 2005, no pet.). In the context of a spill on the floor of a public

building, evidence of the spill’s conspicuousness and the proximity of the property

owner or its employees to the spill are relevant to whether the owner had

constructive notice of the dangerous condition. Reece, 81 S.W.3d at 815–16. But

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even when a spill is conspicuous and employees are in close proximity to it, “there

must be some proof of how long the hazard was there . . . .” Id. This requires

“temporal evidence” of the length of time the dangerous condition existed to

establish that the premises owner had a reasonable opportunity to discover and

remedy it. Id. at 816 (requiring “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.”). Temporal evidence allows for the

conclusion that the premises owner “should” have discovered the danger, not just

that it “could” have done so. Id.

The question, then, is whether East adduced any evidence of how long the

“dirty liquid substance that was on the unclean floor” had been there. In my view,

she has not.

The Affidavits

I do not agree with the Court’s analysis of the factual assertions contained in

the two affidavits attached to East’s summary judgment response.

A. Identification of cause of fall

The Court appears to understand the affidavits not to allege that there was a

spill but that the floor was equally dirty and slippery throughout the store. Under

this reading, East did not fall from slipping on a spilled liquid substance; instead,

she supposedly fell as a result of the consistently dirty floor conditions—as if there

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was an equal probability that she would have fallen by the front door, the cash

register, or where she actually fell—all of which was presumably visible to the

employees. But the affidavit from East’s grandson states that East “slipped on a

dirty liquid substance that was on the unclean floor.” So while the floors were dirty

in other locations in the store—such as near the entrance—and may have caused

her grandson to slip (but apparently not fall), the ultimate cause of her fall was the

liquid substance. East herself never claims that she slipped on the dirty floor before

her fall so the only evidence of the cause of her fall is her grandson’s direct

statement that it was a liquid on the dirty floor that caused her fall.

B. Merging of unrelated facts

The Court merges two unrelated factual assertions to meet the temporal

evidence requirement that a dangerous condition exist long enough for the

employees to have discovered it: (1) East’s grandson’s statement that the liquid

substance East fell on was “extremely dirty” and (2) the grandson’s statement that

the restaurant “looked like it had not been cleaned for several days” combined with

East’s daughter’s statement that the restaurant was “extremely dirty” when she

visited the restaurant later that day. These factual assertions—alone and in

combination—fail to demonstrate constructive knowledge of a liquid substance on

the floor.

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Regarding the grandson’s description of the liquid as “extremely dirty,” the

Court concedes that “a general description of dirtiness,” alone, does not meet the

temporal requirements of Reece. The point was explained in a case with facts

analogous to those adduced by East: Wal-Mart Stores, Inc. v. Gonzalez, 968

S.W.2d 934 (Tex. 1998). In Gonzalez, a shopper slipped on spilled macaroni salad

that was described by the plaintiff’s daughter as having “a lot of dirt” in it along

with footprints and cart track marks. Id. at 936. The Court held that the plaintiff’s

evidence was insufficient to establish that, more likely than not, the salad had been

on the floor long enough to charge Wal-Mart with constructive knowledge:

Dirt in macaroni salad lying on a heavily-traveled aisle is no evidence

of the length of time the macaroni had been on the floor. That

evidence can no more support the inference that it accumulated dirt

over a long period of time than it can support the opposite inference

that the macaroni had just been dropped on the floor and was quickly

contaminated by customers and carts traversing the aisle.

Id. at 937. When the evidence makes it equally plausible that the dangerous

condition just occurred as that it had been there a lengthier amount of time, that

evidence is insufficient to charge the premises owner with constructive knowledge.

Id. at 936. Without temporal evidence necessary to establish constructive

knowledge, summary judgment is proper. See Bendigo, 178 S.W.3d at 114–15; cf.

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (stating that “an

inference stacked only on other inferences is not legally sufficient evidence.”).

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Here, as in Gonzalez, the dirty substance was in an area that would have

been heavily traveled—“only seven or eight steps” away from the cash register.

Thus, just as in Gonzalez, the liquid substance could have been quickly

contaminated by customers walking through the area. Indeed, dirt in other areas of

the store could have easily been tracked into the liquid. Because East herself

walked up to the counter, made and paid for her order, and only slipped as she was

walking away, she could have walked through the liquid on her way to the counter

as well.

Other courts, likewise, have concluded that a description of water or some

other substance as “dirty” is insufficient to satisfy the temporal requirement for

constructive knowledge. See, e.g., Wal-Mart Stores, Inc. v. Rosa, 52 S.W.3d 842,

844 (Tex. App.—San Antonio 2001, pet. denied) (en banc) (evidence that banana

on floor was “brown” only supports the “possibility” that the dangerous condition

existed long enough to establish constructive notice; possibility is no more than

speculation and is treated as no evidence); Safeway Stores, Inc. v. Harkless, 601

S.W.2d 534, 537–39 (Tex. App.—Tyler 1980, writ ref’d n.r.e.) (evidence that

brown liquid was on floral department floor held inadequate to establish

constructive knowledge); Robledo v. Kroger Co., 597 S.W.2d 560, 560–61 (Tex.

App.—Eastland 1980, writ ref’d n.r.e.) (concluding that existence of “dirty water”

on floor is not probative of how long spill had been on floor before customer fell).

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The evidence regarding the “extremely dirty” substance on the floor, without more,

did not create a fact issue.

I also do not accept the Court’s statement that there is “direct evidence” that

the store’s employees “were in close proximity to the visible extremely dirty liquid

on the floor.” While seven or eight steps away from the cash register may be close

in proximity, there is no evidence that the liquid was visible from behind the cash

register to have made it conspicuous to the employees. The cash register counter

could have blocked visibility, the spill could have been seven or eight steps to the

right or left of the cash register which would have made it much less conspicuous,

or the spill could have been obstructed from the employees’ view by the customers

waiting in front of the cash register counter to place their orders. East offered no

evidence that the spill was conspicuous from the cashiers’ vantage points.

Moreover, East offered no evidence of the source of the liquid, the size of the

liquid, or its specific location. She does not even identify the liquid itself: was it a

refreshment that was spilled at the drink station, a squished ketchup packet, or

possibly melted ice? Unlike the scenario discussed in Reece, East did not offer

evidence of the color of the spill or floor to show that the contrast between the two

made the spill more visible to establish conspicuousness. See Reece, 81 S.W.3d at

816 (noting that dangerous substance may be more conspicuous if it is “a large

puddle of dark liquid on a light floor”).

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The Court contends that there is something more here: evidence that the

store and floor themselves were also dirty. But evidence of other dirty areas of the

store is insufficient to create a fact issue on constructive knowledge of the

dangerous condition that caused East’s fall. To the extent that the store and floor

were dirty in areas other than where East fell, those areas were not the dangerous

condition that caused her fall.

The Court states, however, that “[t]he slippery condition existed on the floor

from the entryway . . . to the cash registers.” None of the affidavits make this

claim; the Court considers this conclusion a fair inference from the grandson’s

statement that “when we entered the Burger King the floor was slippery.” But his

affidavit distinguishes this area from the area that he claims should have had

barriers because it had a “dirty liquid substance” on it. It was this substance that he

alleges “was the cause of her fall.”

The Court reaches back to a pre-Gonzalez decision, H. E. Butt Grocery Co.

v. Heaton, 547 S.W.2d 75 (Tex. Civ. App.—Waco 1977, no writ), which it

describes as concluding that a dirty floor with a spill on it that appeared to be

covered with the “same layer of dirt that was on the floor” justified an inference

that the spill had been on the floor as long as the surrounding dirt. In Heaton, the

plaintiff testified that it “appeared” that “the same layer of dirt that was on the floor

proceeded to cover the grapes as if they had been there for a great length of time.”

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Id. at 76 (emphasis added). The appellate court concluded that this testimony was

some evidence that the spill (i.e., smashed grapes) had been on the floor “longer

than mere moments or a few minutes” because the spill was covered with the dirt

that had accumulated over the period that employees allowed to pass between

cleanings. Id. Such evidence may have been relevant here, too, but was not offered.

Therefore, to the extent Heaton remains instructive, is it distinguishable on its

facts.

Conclusion

East was required to present more than a scintilla of evidence to satisfy the

temporal requirement that the liquid substance was on the floor “long enough to

give [the store] reasonable opportunity to discover” and clean it. She did not, and

therefore, did not create a fact issue on constructive knowledge. I would affirm the

trial court’s judgment.

Harvey Brown

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, dissenting from the judgment.

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