Julia Knox v. Fiesta Mart, Inc

Opinion issued April 21, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-01060-CV

———————————

Julia Knox , Appellant

V.

Fiesta Mart,

Inc. , Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 938057

MEMORANDUM OPINION

In

this premises liability case, appellant, Julia Knox, sued Fiesta Mart, Inc.

(“Fiesta Mart”) for negligence after she allegedly tripped over a pallet

containing a box of watermelons located at the entrance to the store and

injured her knee. Fiesta Mart moved for

no-evidence summary judgment, contending that Knox could present no evidence

that an unreasonably dangerous condition existed or that Fiesta Mart had actual

or constructive knowledge of such a condition.

The trial court rendered summary judgment in Fiesta Mart’s favor. In two issues on appeal, Knox contends that

the trial court erred in rendering summary judgment because (1) she raised a

fact issue regarding whether Fiesta Mart had actual or constructive knowledge

of the condition on the premises and (2) she raised a fact issue regarding

whether the location and placement of the watermelon pallets posed an

unreasonable risk of harm.

We affirm.

Background

On

April 16, 2007, Knox, her son-in-law Abasi King, and her grandson visited a

Fiesta Mart store in southwest Houston.

As she walked to the entrance of the store, Knox allegedly tripped over

a pallet that held a box containing watermelons. Knox fell to the ground and injured her knee,

which eventually required surgery.

Knox

sued Fiesta Mart for negligence under a premises liability theory, alleging

that Fiesta Mart “negligently permitted the floor to become dangerous” and

“negligently or willfully failed to warn [Knox] of the condition of the

floor.” Knox specifically alleged that

Fiesta Mart failed to “properly inspect and maintain the flooring area in

question to discover the dangerous condition,” failed to “maintain the floor in

a reasonably safe condition,” failed to “give adequate and understandable

warnings to [Knox] of the unsafe condition,” and failed to “remove the

watermelon pallet causing the trip and fall.”

Fiesta

Mart moved for no-evidence summary judgment.

Fiesta Mart contended that Knox could present no evidence that the

watermelon pallet posed an unreasonable risk of harm because Knox was

“allegedly harmed by nothing more than the mere presence of a watermelon

crate.” Knox was not harmed by a

watermelon that had fallen off of the pallet but by the pallet itself, and Fiesta

Mart argued that no evidence existed that the pallet was unreasonably

dangerous. Fiesta Mart also contended

that Knox could present no evidence that it had either actual or constructive

notice of the condition. Fiesta Mart

argued that Knox had no evidence that it actually knew, before her fall, that

the watermelon pallet was unreasonably dangerous and, because Knox had no

evidence of how long the condition had existed before her fall, Fiesta Mart

could not be charged with constructive notice of the condition.

In

response to Fiesta Mart’s summary judgment motion, Knox presented the entire

transcript of her deposition and an affidavit from King, who was with Knox when

she fell. Knox argued that she presented

sufficient evidence to raise a fact issue on whether the watermelon pallet

posed an unreasonable risk of harm because (1) she had opined in her deposition

testimony that the pallet was too close to the entrance door; (2) she testified

that the store manager, while speaking with her after her fall, agreed that the

pallet was too close to the entrance; and (3) King also averred that the pallet

was too close to the door. Knox also

argued that she raised a fact issue regarding Fiesta Mart’s knowledge of the

condition because store employees had set up the pallet and thus created the

allegedly dangerous condition.

In

her deposition, Knox testified that she routinely visited this particular

Fiesta store and was familiar with its layout.

She stated that, as she was walking into the Fiesta, she tripped over a

pallet placed by the entrance door and fell to the ground. Knox testified that a large box full of

watermelons sat on top of the pallet. During

the deposition, Fiesta Mart’s counsel showed Knox a picture of the entrance to

the Fiesta, which depicted a box of watermelons resting on a display pallet,

and asked her if the picture resembled the entrance on the date of the

incident. Knox testified that the

picture was different because the watermelon pallet was “closer to the door” on

the day of the accident. She stated that

“even the manager said [the pallet] was too close [to the door.]” She also testified that, on the day of the

incident, the pallet was “older” and “more raggedy” than the pallet in the

picture and the box holding the watermelons looked more worn and did not have

yellow “warning” arrows on the corners, unlike the watermelon box in the

picture. Knox testified that she could

not remember if she saw the watermelons before she fell, although she

acknowledged that, in her recorded statement made two months after the

incident, she stated that she was looking at the watermelons before she fell.

Knox

further testified that, after she fell, the Fiesta manager came outside, helped

her up, gave her water and a towel, apologized, and gave her a $750 medical

voucher. The deposition exhibits, which

Knox attached to her summary judgment response, included the picture of the

Fiesta entrance that Fiesta Mart’s counsel had shown to Knox during her

testimony. The exhibits also included

the incident report completed by the manager, which contained the following

statement: “The pallet of watermelon[s]

is far from the door way — bigger than

two basket length[s] from [the] door.”

As

additional summary judgment evidence, Knox attached an affidavit from Abasi

King, her son-in-law. King averred that

“[t]he pallets were located too close to the front entrance door in a high

traffic area.” In its summary judgment reply, Fiesta

Mart objected to this portion of King’s affidavit on the grounds that this

statement was an “unsubstantiated opinion” and was both legally and factually

conclusory. The trial court sustained

the objection. Knox does not challenge

this ruling on appeal. [1]

In

its reply, Fiesta Mart argued that Knox’s testimony regarding what the manager

said provides no evidence of notice “because it does not address how long [the

condition] had allegedly existed prior to the incident” and it “provides

evidence only that Fiesta knew of the location of the pallets after the incident, which is not [the]

proper inquiry.” Fiesta Mart also argued

that Knox cited to no authority that the “placement of an object can make it unreasonably

dangerous.”

The

trial court rendered summary judgment in favor of Fiesta Mart and this appeal

followed.

Standard of Review

We

review de novo the trial court’s ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). After an adequate time for

discovery, a party may move for no-evidence summary judgment on the ground that

no evidence exists of one or more essential elements of a claim on which the

adverse party bears the burden of proof at trial. Tex.

R. Civ. P. 166a(i); see Flameout Design

& Fabrication, Inc. v. Pennzoil Caspian Corp. , 994 S.W.2d 830, 834

(Tex. App.—Houston [1st Dist.] 1999, no pet.).

The burden then shifts to the nonmovant to produce evidence raising a

genuine issue of material fact on the elements specified in the motion. Tex.

R. Civ. P. 166 a(i); Mack Trucks,

Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). The trial court must grant the motion unless

the nonmovant presents more than a scintilla of evidence raising a fact issue

on the challenged elements. Flameout Design & Fabrication , 994

S.W.2d at 834 ; see also Merrell Dow

Pharms. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla

of evidence exists when the evidence supporting the finding, as a whole, ‘rises

to a level that would enable reasonable and fair-minded people to differ in

their conclusions.’” (quoting Burroughs

Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995))). To determine if the nonmovant has raised a

fact issue, we review the evidence in the light most favorable to the nonmovant,

crediting favorable evidence if reasonable jurors could do so, and disregarding

contrary evidence unless reasonable jurors could not. See

Fielding , 289 S.W.3d at 848 (citing City

of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005)).

When,

as here, the trial court’s summary judgment does not state the basis for the

court’s decision, we must uphold the judgment if any of the theories advanced

in the motion are meritorious. Provident Life & Accident Ins. Co. v.

Knott , 128 S.W.3d 211, 216 (Tex. 2003).

Actual or Constructive Knowledge

In

her first issue, Knox contends that the trial court erred in rendering summary

judgment in favor of Fiesta Mart because her summary judgment evidence raised a

fact issue regarding whether Fiesta Mart had actual or constructive knowledge

of the location and placement of the watermelon pallets.

Fiesta

Mart owed Knox, its invitee, a duty to exercise reasonable care to protect her

from dangerous conditions in the store that were either known or reasonably

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

1998); Bendigo v. City of Houston ,

178 S.W.3d 112, 114 (Tex. App.—Houston [1st Dist.] 2005, no pet.). This duty does not, however, make the

premises owner an insurer of the invitee’s safety. Gonzalez ,

968 S.W.2d at 936 ; Bendigo , 178

S.W.3d at 114 . To recover damages, a

plaintiff must prove:

(1)

Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2)

That the condition posed an unreasonable risk of harm;

(3)

That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4)

That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries

Keetch v.

Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992).

A premises liability plaintiff satisfies the notice element by

establishing that (1) the premises owner created the allegedly dangerous

condition; (2) the owner actually knew that the allegedly dangerous condition

existed; or (3) it is more likely than not that the condition existed long

enough to give the premises owner a reasonable opportunity to discover it. See

Wal-Mart Stores, Inc. v. Reece , 81 S.W.3d 812, 814 (Tex. 2002); see also Wright v. Wal-Mart Stores, Inc. ,

73 S.W.3d 552, 554 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (stating that

knowledge can be established by “proof that employees either saw or were told

of the harmful condition prior to the plaintiff’s injury”).

A.

Actual Knowledge

Actual knowledge “requires

knowledge that the dangerous condition existed at the time of the accident, as

opposed to constructive knowledge which can be established by facts or

inferences that a dangerous condition could develop over time.” City of

Corsicana v. Stewart , 249 S.W.3d 412 , 414–15 (Tex. 2008) (per curiam). Circumstantial evidence establishes actual

knowledge only when it directly or by reasonable inference supports that

conclusion. Id. at 415 (citing State v.

Gonzalez , 82 S.W.3d 322 , 330 (Tex. 2002)).

When determining if a premises owner has actual knowledge of a condition

that presents an unreasonable risk of harm, courts generally consider whether

the owner had received reports of prior injuries or reports of the potential

danger presented by the condition. Tex. S. Univ. v. Gilford , 277 S.W.3d 65,

70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Brinson Ford, Inc. v. Alger , 228 S.W.3d

161, 163 (Tex. 2007) (per curiam)); see

also Wal-Mart Stores, Inc. v. Chavez , 81 S.W.3d 862, 864 (Tex. App.—San

Antonio 2002, no pet.) (“The unidentified customer informed [an employee] of

the cooking oil spill, so there is no question that Wal-Mart had actual

knowledge of the spill.”).

Knox contends that Fiesta Mart had

actual knowledge of the allegedly dangerous condition because Fiesta Mart

employees placed the pallet in the entryway, monitored the pallet, and placed

more watermelons on the pallet as it became empty. Knox cites the Texas Supreme Court’s

decisions in Keetch and Coffee v. F.W. Woolworth Co. , 536 S.W.2d

539 (Tex. 1976), for the proposition that when store employees create the

allegedly dangerous condition, this is circumstantial evidence or an “inference

of knowledge” that raises a fact issue.

Fiesta Mart responds that Knox’s only evidence of actual knowledge is

“the way in which the pallets were placed,” and Knox presented no evidence that

“Fiesta was ever told by anyone of the way in which the pallets were placed” or

that “Fiesta actually created the condition.”

Fiesta Mart also contends that neither Keetch nor Coffee holds

that an “inference of knowledge” is a fact question for the jury.

In Rice Food Market, Inc. v. Hicks , 111 S.W.3d 610 (Tex. App.—Houston

[1st Dist.] 2003, pet. denied), we addressed whether Hicks presented legally

and factually sufficient evidence that Rice Food Market had actual knowledge

that a sign hanging from a kiosk posed an unreasonable risk of harm. We observed that although the Texas Supreme

Court held in Keetch that the fact

that a premises owner created a condition “may support an inference of

knowledge,” the fact-finder “must still find that the owner or occupier knew or

should have known of the condition.” Id. (quoting Keetch , 845 S.W.2d at 265 ). We

noted that Hicks presented no evidence that the sign had fallen before the

particular incident at issue, and a Rice employee testified at trial that he

was not aware of any similar incidents. Id.

We also noted that “there is no evidence in the record that the sign was

a dangerous condition from the moment it was installed.” Id. We concluded that Hicks presented no evidence

that Rice had actual knowledge that the sign posed an unreasonable risk of harm,

and we ultimately reversed the trial court and rendered judgment that Hicks take

nothing. Id.

We also addressed, in Lofton v. Marmaxx Operating Corp. ,

whether T.J. Maxx had knowledge that a floor mat placed in front of an exit

door by an employee posed an unreasonable risk of harm. No. 01-06-01109-CV, 2008 WL 525678 , at *3

(Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.). We agreed with T.J. Maxx’s assertion that

“knowledge that it had placed a floor mat in its foyer is not knowledge that

the floor mat presented a hazard.” Id.

We noted that Lofton had presented no evidence that other patrons had

previously tripped on the mat, that the mat had any defects, that the type of

mat used was unusual, or that “[the mat’s] particular construction and

placement should have suggested to T.J. Maxx that it presented a prohibitive

degree of danger.” Id. We affirmed the summary

judgment in favor of T.J. Maxx.

Here, Knox presented no evidence

that Fiesta Mart had received reports of prior injuries to customers from

tripping over the watermelon pallet or reports of the potential danger

presented by the pallet, that there was anything unusual about this watermelon

pallet, or that its construction or placement should have suggested to Fiesta

Mart that it “presented a prohibitive degree of danger.” See

Lofton , 2008 WL 525678 , at *3; see

also Gilford , 277 S.W.3d at 70 ; Rice

Food Mkt. , 111 S.W.3d at 613 ; Chavez ,

81 S.W.3d at 864 . Aside from opining,

based on a picture of the Fiesta entrance that Fiesta Mart’s counsel showed her

during her deposition, that the watermelon pallet was “closer to the door” on

the day of her accident than in the picture and stating that an unidentified

manager had said that “[the pallet] was too close [to the entrance],” Knox

presented no evidence of where the pallet was actually located. We have previously held that knowledge of the

mere placement of an object is not knowledge that the object — here, a watermelon display pallet at a grocery

store entrance — presented a hazard. See

Lofton , 2008 WL 525678 , at *3 (holding that knowledge of placement of floor

mat in front of store exit is not evidence of knowledge of hazard). We therefore conclude that Knox presented no

evidence that Fiesta Mart had actual knowledge that the placement of the

watermelon pallet posed an unreasonable risk of harm.

B.

Constructive Knowledge

To hold Fiesta Mart liable on the

basis that it had constructive knowledge of the allegedly dangerous condition,

Knox had to raise a fact issue regarding whether the condition had existed “for

a sufficient period of time that [the defendant] had a reasonable opportunity

to discover it.” Reece , 81 S.W.3d at 814 ; CMH

Homes, Inc. v. Daenen , 15 S.W.3d 97 , 102–03 (Tex. 2000). Temporal evidence — evidence of the length of time the dangerous

condition existed — is

necessary for the fact-finder to reasonably assess the opportunity that the

premises owner had to discover the condition.

Reece , 81 S.W.3d at 816 . “[T]here must be some proof of how long the

hazard was there before liability can be imposed on the premises owner for

failing to discover and rectify, or warn of, the dangerous condition.” Id.

Here, Knox presented no evidence of

how long the watermelon pallet was at the particular location by the entrance

door before Knox fell. The plaintiff

must present some evidence of how long the hazard had existed in order to

charge the premises owner with constructive knowledge and impose liability upon

it. Id. Because Knox presented no evidence of how

long the allegedly dangerous condition of the watermelon pallet had existed

before her fall, we conclude that Knox failed to raise a fact issue regarding

whether Fiesta Mart had constructive knowledge of the condition. See id. ;

see also Rice Food Mkt. , 111 S.W.3d

at 613 (“Hicks failed to present any evidence on how long the sign had been

attached to the canvas. The evidence is

legally insufficient to support a finding of knowledge.”).

We therefore hold that Knox failed

to raise a fact issue regarding whether Fiesta Mart had actual or constructive

knowledge that the location of the watermelon pallet posed an unreasonable risk

of harm.

We overrule Knox’s first issue.

Unreasonable Risk of Harm

In

her second issue, Knox contends that the trial court erred in rendering summary

judgment in favor of Fiesta Mart because her summary judgment evidence raised a

fact issue regarding whether the location and placement of the watermelon

pallets posed an unreasonable risk of harm to Fiesta Mart’s customers.

A

condition poses an unreasonable risk of harm if “there is such a probability of

a harmful event occurring that a reasonably prudent person would have foreseen

it or some similar event as likely to happen.”

Wong v. Tenet Hosps. Ltd. , 181

S.W.3d 532, 539 (Tex. App.—El Paso 2005, no pet.) (citing Reliable Consultants, Inc. v. Jaquez , 25 S.W.3d 336, 341 (Tex.

App.—Austin 2000, pet. denied)); see

Seideneck v. Cal Bayreuther & Assocs. , 451 S.W.2d 752, 754 (Tex.

1970). Foreseeability does not require that

the exact sequence of events that produced an injury be foreseeable; rather,

only the general danger must be foreseeable.

Cnty. of Cameron v. Brown , 80

S.W.3d 549, 556 (Tex. 2002). The

determination of whether a particular condition poses an unreasonable risk of

harm is “generally fact specific” and this type of determination “involve[s]

issues well suited for a jury.” Wong , 181 S.W.3d at 539 (citing Reliable Consultants, Inc. , 25 S.W.3d at

342 ). There is no “definitive, objective

test” to apply to determine whether a condition poses an unreasonable risk of

harm. Id. (citing Seideneck ,

451 S.W.2d at 754 ). A condition is not

unreasonably dangerous “simply because it is not foolproof.” Brookshire

Grocery Co. v. Taylor , 222 S.W.3d 406, 408 (Tex. 2006).

Fiesta

Mart relies on the Texas Supreme Court’s decisions in Taylor and H.E. Butt Grocery

Co. v. Resendez , 988 S.W.2d 218 (Tex. 1999) (per curiam), for the

proposition that the mere presence of the watermelon pallet, like the presence

of a customer sampling display in Resendez

and a self-serve soft-drink dispenser in Taylor ,

is not unreasonably dangerous. In Resendez , the supreme court addressed

whether a grape-sampling display constituted an unreasonable risk of harm after

a customer slipped near the display. Resendez , 988 S.W.2d at 218 . The display at issue contained a bowl of

loose grapes that was “level, sitting on ice and recessed about five inches

below the table[’]s surface.” Id.

The table had a three-inch railing along each edge, the floor of the produce

section was non-skid, and floor mats and warning cones were present near the

grape display. Id. at 218–19. The court

concluded that “the mere fact that a store has a customer sampling display

cannot, without more , be evidence of

a condition on the premises that poses an unreasonable risk of harm.” Id.

at 219 (emphasis added). In so holding,

the court distinguished its earlier decision in Corbin v. Safeway Stores, Inc. , 648 S.W.2d 292 (Tex. 1983), which

also involved a grape-sampling display.

The Resendez court noted that,

in Corbin , “there was more evidence

than the mere existence of a display. It

was the manner in which Safeway displayed the grapes — in a slanted bin over a linoleum tile floor

with no protective floor mat — that

created an unreasonable risk of customer falls from grapes falling on the

floor.” Id. (citing Corbin , 648

S.W.2d at 296–97). In contrast, in Resendez , “there [was] no evidence that

the manner of display created an unreasonable risk.” Id.

In Taylor , the supreme court addressed

whether a self-serve soft-drink dispenser, in addition to ice that had fallen

from the dispenser and partially melted on the floor, posed an unreasonable

risk of harm. 222 S.W.3d at 408 . The court noted that Taylor presented no

evidence that this dispenser “was set up in such a way that ice on the floor

was a greater danger than one would ordinarily encounter with such dispensers,

or that customers, though prone to spills, were any more prone around this

dispenser.” Id. In response to Taylor’s

argument that Brookshire Grocery should have put more mats and warning signs

around the dispenser, the court stated that this argument was relevant for

whether Brookshire Grocery exercised reasonable care, but it was not evidence

that the “dispenser itself was unreasonably dangerous.” Id. In concluding that the dispenser was not an

unreasonably dangerous condition, the court observed that “[a] condition is not

unreasonably dangerous simply because it is not foolproof.” Id.

Knox

contends that “the placement of the pallets and the fact that the pallets were

continually being emptied” made the watermelon pallet unreasonably

dangerous. Knox presented no evidence in

the summary judgment record that the pallet “[was] continually being emptied”

or that it was “emptied” at the time of her fall. Furthermore, Knox presented no evidence of

where the watermelon pallet was actually located. The manager’s incident report, attached as an

exhibit to Knox’s deposition, stated that “[t]he pallet of watermelon[s] is far

from the doorway — bigger than

two basket length[s] from [the] door.”

In response, Knox merely opined, after being shown a picture of the

Fiesta entrance that depicted a watermelon pallet clearly not obstructing the

doorway, that the pallet was “closer to the door” on the date of her

accident. Knox provided no pictorial

evidence of the scene of her accident, she made no attempt to diagram the

location of the pallet relative to the door on the date of her accident, and

she did not offer an estimate of how far away the pallet was from the door. Knox, therefore, has offered no evidence

beyond the mere presence of the watermelon pallet in the vicinity of the

entrance door to establish that the pallet posed an unreasonable risk of harm. See

Resendez , 988 S.W.2d at 219 ; see also

Taylor , 222 S.W.3d at 408 . The mere

presence of the watermelon display at the entrance to the grocery store is no

evidence that the manner of displaying the watermelons was unreasonably

dangerous. See Resendez , 988 S.W.2d at 219 .

We conclude that Knox failed to

raise a fact issue regarding whether the location and placement of the watermelon

pallet posed an unreasonable risk of harm to Fiesta Mart’s customers. We therefore hold that the trial court correctly

rendered summary judgment in favor of Fiesta Mart.

We overrule Knox’s second issue.

Conclusion

We affirm

the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

[1]

When the trial court sustains

objections to a party’s summary judgment evidence and the party does not attack

the merits of that ruling on appeal, we may not consider the stricken evidence

when reviewing the summary judgment. See Little v. Needham , 236 S.W.3d 328,

331 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Inglish v. Prudential Ins. Co. of Am. , 928 S.W.2d 702, 706 (Tex.

App.—Houston [1st Dist.] 1996, writ denied)).