Noelia Bendigo and Colin Bendigo v. City of Houston, Burns Management Group, Inc., and Central Parking System of Texas, Inc.

Opinion issued June 23, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00443-CV

NOELIA BENDIGO and COLIN BENDIGO, Appellants

V.

CITY OF HOUSTON, BURNS MANAGEMENT GROUP, INC.,

CENTRAL PARKING SYSTEM OF TEXAS, INC., NEW SOUTH

PARKING TEXAS, and AZTEC FACILITY SERVICES, INC., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2002-53398

O P I N I O N

Appellants, Noelia and Colin Bendigo, challenge the traditional and no-evidence summary judgments rendered against them in their trip-and-fall premises

liability lawsuit against appellees, City of Houston, Burns Management Group, Inc.,

Central Parking System of Texas, Inc., New South Parking Texas, and Aztec Facility

Services, Inc. (collectively “Burns Management”). We conclude that the trial court

did not err in granting Burns Management’s summary judgment and therefore affirm. Facts

In July 2001, Noelia Bendigo and her friend Yolanda Feindt arrived at Bush

Intercontinental Airport with the intent that Bendigo would board a flight bound for

Miami, Florida. Bendigo walked through the Terminal C parking garage on her way

to the flight gate. As she walked down the parking garage stairwell—holding her

garment bag in one hand and the stairwell railing in the other—Bendigo slipped on

a disposable cup, fell down the remaining stairs, and injured her ankle.

Bendigo sued Burns Management, contending that it owned, operated, and

maintained the parking garage in which she fell and that it was negligent in

maintaining the stairwell.

Burns Management moved for a traditional and no-evidence summary judgment.

In March 2004, the trial court granted summary

judgment.

Standard of Review

The propriety of summary judgment is a question of law, and thus we review

the trial court’s decision de novo. Provident Life & Accident Ins. Co. v. Knott , 128

S.W.3d 211, 215 (Tex. 2003). Burns Management filed both traditional and

no-evidence summary judgment motions. See Tex. R. Civ. P. 166a(c),(i). On review,

we make inferences, resolve doubts, and view the evidence in the light most favorable

to the non-movant. Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222 (Tex. 1999).

The movant for a traditional summary judgment has the burden of showing that

there is no genuine issue of material fact and that he is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo , 909

S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548

(Tex. 1985). A defendant moving for summary judgment must either disprove at least

one element of each of the plaintiff’s causes of action, or plead and conclusively

establish each essential element of its affirmative defense, thereby rebutting the

plaintiff’s causes of action. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995).

In a no-evidence summary judgment under Rule 166a(i), the movant represents

that no evidence exists as to one or more essential elements of the non-movant’s

claims, upon which the non-movant would have the burden of proof at trial. Tex. R.

Civ. P . 166a(i). The non-movant then must present evidence raising a genuine issue

of material fact on the challenged elements. Id . A no-evidence summary judgment

is essentially a pre-trial directed verdict, and a no-evidence motion asserts that no

evidence exists as to at least one essential element of the non-movant’s claims on

which the non-movant would have the burden of proof at trial. Jackson v. Fiesta

Mart , 979 S.W.2d 68 , 70–71 (Tex. App.—Austin 1998, no pet.). On review, we

ascertain whether the non-movant produced more than a scintilla of probative

evidence to raise a genuine issue of material fact. Id . More than a scintilla of

evidence exists if the evidence “rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman , 118

S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner , 953

S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than create a mere

surmise or suspicion of fact, less than a scintilla of evidence exists. Merrell Dow

Pharms. Inc. , 953 S.W.2d at 711 .

Here, because the summary judgment order does not specify the ground or

grounds on which the trial court relied for its ruling, we will affirm the summary

judgment if any theory the non-movant advances has merit. See Weiner v. Wasson ,

900 S.W.2d 316 , 317 n.2 (Tex. 1995); Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d

623 , 625–26 (Tex. 1996).

Premises Liability

Burns Management owed Bendigo, its invitee, a duty to exercise reasonable

care to protect Bendigo from dangerous conditions in the garage that were known or

reasonably discoverable. Wal-Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 936

(Tex. 1998). It was not, however, an insurer of Bendigo’s safety. Id .

In order to recover from Burns Management, Bendigo must prove the

following:

(1) [That the owner/operator 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/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) (citing Corbin v. Safeway

Stores, Inc. , 648 S.W.2d 292, 296 (Tex. 1983)). A trip-and-fall plaintiff satisfies the

notice element by establishing one of three things: (1) that the defendant placed a

substance on the floor; (2) that the defendant actually knew that a substance was on

the floor; or (3) that it is more likely than not that the dangerous 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) (citing Gonzalez , 968

S.W.2d at 936 and Keetch , 845 S.W.2d at 265 ).

A. Constructive Knowledge of Cup

In its motion for no-evidence summary judgment, Burns Management contends

that Bendigo failed to produce evidence of its actual or constructive knowledge of the

alleged dangerous condition. Bendigo does not contend that an employee of Burns

Management placed the cup on the floor. Moreover, Bendigo concedes that she

raises no fact issue regarding whether Burns Management had actual knowledge that

the cup was present in the stairwell at the time that she fell. Bendigo thus relies on

constructive knowledge. To prevail, she must produce more than a scintilla of

provative evidence that the cup had been on the floor for a sufficient period of time

to allow Burns Management a reasonable opportunity to discover it. See Wright v.

Wal-Mart Stores, Inc. , 73 S.W.3d 552 , 554–56 (Tex. App.—Houston [1st Dist.] 2002,

no pet.).

Although Bendigo concedes that she does not know the exact time that the cup

was dropped in the stairwell, she contends that she satisfies her burden by providing

circumstantial evidence that Burns Management failed to check the stairwell for litter

after the late afternoon rush at Terminal C. A plaintiff may rely on circumstantial

evidence to prove constructive notice of a dangerous condition if the circumstantial

evidence establishes that a proposition is more likely than not probable, but such

evidence is insufficient if it raises two equally possible propositions. Id . (citing

Gonzalez , 968 S.W.2d at 936 ). If circumstances are consistent with any possibility,

and nothing shows that one is more probable than the other, then no fact can be

inferred by a reasonable factfinder. Id . (citing Lozano v. Lozano , 52 S.W.3d 141, 148

(Tex. 2001)). Likewise, a reasonable jury may not infer an ultimate fact from meager

circumstantial evidence that could give rise to any number of inferences, none more

probable than another. Id .

Bendigo directs us to the following circumstantial evidence. First, Burns

Management knew that thousands of people use the Terminal C garage on a daily

basis. Second, Burns Management knew that an “exodus of customers” occurred

from the parking garage between approximately 5:30 p.m. and 6:30 p.m. each day.

Third, after its daily 10:00 a.m. cleaning, Burns Management did not again inspect

the stairwell until approximately midnight or 1:00 a.m. Fourth, Bendigo fell in the

stairwell around 8:30 p.m. Finally, when Bendigo fell, at least two other pieces of

garbage—including empty food wrappers and a Coca-Cola can—littered the stairwell.

Bendigo contends that this evidence raises a fact issue “that the cup could well have

been on the stairs for 10-12 hours—a sufficient amount of time to allow a party to be

deemed to have constructive knowledge.”

Bendigo provides no evidence that the collection of trash that she found existed

in the stairwell after her fall was a usual occurrence. No evidence suggests that, even

if an accumulation of trash is usual, it is likely to accumulate at a certain time of the

day. No evidence exists of prior reports of slips or falls or injuries of any kind in the

Terminal C stairwell. No evidence suggests that the condition of the cup indicated

that it had been in the stairwell for a long time. Mere evidence that Burns

Management had not cleaned the stairs for approximately ten hours before Bendigo’s

fall is not evidence of the time that a passerby actually discarded the cup in the

stairwell. Bendigo’s speculation—that the cup “could have been there” for ten to

twelve hours—is not more probable than a number of other scenarios, including that

the cup was dropped minutes before Bendigo fell. Bendigo’s facts “create a mere

surmise or suspicion of fact,” and therefore amount to less than a scintilla of evidence

of Burns Management’s constructive knowledge of a dangerous condition. See

Reece , 81 S.W.3d at 816–17 (holding that evidence that store had time to discover

liquid spill on floor was insufficient evidence to support finding that store had

constructive notice of spill); Gonzalez , 968 S.W.2d at 937–38 (holding that dirt in

macaroni salad on floor is no evidence of length of time macaroni had been on floor

and thus is no basis for constructive notice); Joachimi v. City of Houston , 712 S.W.2d

861 , 864–65 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (holding plaintiff’s

contention that more inspections could have discovered oil spot on parking garage

floor was not enough to find that garage owner had constructive notice of it); see also

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

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

B. Liability Without Constructive Knowledge

Bendigo cites Corbin , 648 S.W.2d at 295–96, for her contention that she did

not have to provide evidence of Burns Management’s actual or constructive notice

of the cup in the stairwell.

In Corbin , a grocery store customer slipped on a grape

in front of a self-service grape bin. The customer sued the store, claiming that three

dangerous conditions existed: (1) the grape on which he slipped; (2) excessively dirty

floors; and (3) the self-service display of green grapes, in an open, slanted bin above

a green linoleum floor. Id . at 296. The court held that because the store did not have

actual or constructive notice of the grape on the floor, it could not be liable under the

customer’s first theory. Id . Second, even though evidence existed that the store had

a history of letting its floors become filthy, it could not support a finding that the dirty

floor proximately caused the customer’s fall “since he testified that he slipped on a

grape, not on dirt or other slippery matter.” Id . The customer could recover against

the store under his third theory because there was evidence that the store knew of an

unusually high risk associated with its grape display. Id . In its holding, the Corbin

court noted the difference from other “slip and fall” cases: “there is usually no basis

for a claim that the storeowner maintained an unreasonably dangerous method of

display that frequently caused such food items to become floor hazards.” Id . at 297

(emphasis in original).

Bendigo’s reliance on Corbin is misplaced. First, Bendigo’s failure to provide

evidence of Burns Management’s actual or constructive knowledge of the cup is

similar to the customer in Corbin failing to provide evidence of the store’s knowledge

of the grape—in both instances, the lack of knowledge is fatal. Moreover, unlike the

customer in Corbin , Bendigo did not provide evidence that Burns Management

caused the cup to be on the floor or that the stairwell itself was a dangerous condition.

See CMH Homes, Inc. v. Daenen , 15 S.W.3d 97, 101 (Tex. 2000) (distinguishing

facts from those in Corbin because the self-service grape display in Corbin

“constituted a dangerous condition from the moment it was used.”).

Common Law Duty of Ordinary Care

In a separate argument, Bendigo contends that Burns Management had an

additional “common-law legal duty to exercise ordinary care to protect business

invitees from danger.” Bendigo contends that under this common-law duty, Burns

Management is liable because it failed to conduct inspections of a known danger , and

thus, the trial court erred in granting summary judgment because her evidence “raises

a genuine issue of material fact about whether [Burns Management’s] questionable

practice of cleaning stairways only once per day satisfies [its] common-law legal duty

to exercise ordinary care to protect business invitees from danger.”

First, Bendigo’s argument is circular. Before an alleged dangerous condition

can be “known,” Burns Management must have either actual or constructive

knowledge of the condition. Second, the cases Bendigo cites concerning a duty to

inspect do not support her contention. These cases discuss the duty to inspect

premises once a defendant has knowledge of a dangerous condition. Third, Bendigo

provides no support for her argument that, in a trip-and-fall case based on the

condition of the premises, there is a common-law legal duty separate from that

provided in premises liability law. In Keetch , the Texas Supreme Court confirmed

that “ general negligence principles in a premises liability case are stated in Section

343 of the Restatement Second of Torts (1956).” 845 S.W.2d at 266 (emphasis added)

(citing Corbin , 648 S.W.2d at 295 ). Premises liability analysis simply tailors the

traditional test of the conduct of a reasonably prudent person under a general

negligence action to the specific category of premises owners. A separate “general

negligence duty” thus does not exist. Conclusion

We hold that Bendigo failed to provide more than a scintilla of evidence that

Burns Management had knowledge of a dangerous condition. We conclude that the

trial court properly granted a no-evidence summary judgment on Bendigo’s premises

liability claims and therefore affirm its judgment.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.