Opinion
No. 01-08-00702-CV
Opinion issued July 15, 2010.
On Appeal from the 129th District Court Harris County, Texas, Trial Court Case No. 2008-14480.
Panel consists of Chief Justice RADACK and Justices BLAND and SHARP.
MEMORANDUM OPINION
Appellant, Trula Montgomery Samuel, appeals the trial court's summary judgment in favor of appellee, Wal-Mart Stores, Inc. ("Wal-Mart"). In her sole issue on appeal, Samuel contends the trial court erred in granting summary judgment in favor of Wal-Mart because there is a genuine issue of material fact concerning whether Wal-Mart had actual or constructive notice of the hazardous condition that caused Samuel's fall. We affirm.
BACKGROUND
Samuel was shopping at Wal-Mart when she slipped and fell. She did not see anything on the floor before, but after she fell, Samuel noticed that there was glitter on the floor and on her clothes. Samuel filed suit against Wal-Mart based on premises liability, asserting that the substance on the floor constituted a hazardous premises defect.
THE MOTIONS AND THE TRIAL COURT'S RULING
Wal-Mart filed two separate motions for summary judgment, one titled "Motion for Summary Judgment" and one titled "No-evidence Motion for Summary Judgment." However, both motions alleged that there was no evidence that Wal-Mart had actual or constructive knowledge of a hazardous condition on its premises. Thus, Wal-Mart's "Motion for Summary Judgment" was a hybrid motion that included both traditional and no-evidence grounds. See TEX. R. CIV. P.166a(c), (i); Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004) (permitting motions combining no-evidence and traditional grounds).
The trial court's order stated that it granted Wal-Mart's Traditional Motion for Summary Judgment, which, we again note, included no-evidence grounds. There is no separate, express ruling on Wal-Mart's No-Evidence Motion for Summary Judgment. The supreme court has held we "should consider all summary judgment grounds the trial court rules on and the movant preserves for appellate review that are necessary for final disposition of the appeal when reviewing a summary judgment." Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (citing former appellate rule 90(a)). The court in Cates also held "the appellate court may, in the interest of judicial economy, consider other grounds that the movant preserved for review and that the trial court did not rule on." Cates, 927 S.W.2d at 624. Even though the trial court did not separately rule on the no-evidence motion, that ground was before the trial court in both motions, and we may consider it on appeal.
PROPRIETY OF SUMMARY JUDGMENT
Samuel contends the trial court erred in granting summary judgment because there are fact issues regarding whether (1) there was a substance on the floor that caused Samuel's fall and (2) Wal-Mart knew, actually or constructively, that there was a substance on the floor before Samuel fell.
Standard of Review
We review a trial court's decision to grant or to deny a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Under the traditional summary-judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. A defendant moving for summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant's claims on which the non-movant would have the burden of proof at trial. Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. TEX. R. CIV. P.166a(i). A no-evidence summary judgment will be sustained on appeal when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered by the non-movant to prove a vital fact, (3) the evidence offered by the non-movant to prove a vital fact is no more than a scintilla, or (4) the non-movant's evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.
When, as here, a party seeks both a traditional and a no-evidence summary judgment, we first review the trial court's decision regarding summary judgment under the no-evidence standard. See TEX. R. CIV. P. 166a(i). If the non-movant failed to produce more than a scintilla of evidence raising a genuine issue of fact on the challenged elements of his claim, there is no need to analyze whether the movant met his burden on his motion for traditional summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
B. Requirements for Premises Liability
Samuel was Wal-Mart's invitee, to whom Wal-Mart owed a duty to exercise reasonable care to protect her from dangerous store conditions known to or discoverable by Wal-Mart. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998) (citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex. 1975)). This duty, however, does not make Wal-Mart an insurer of Samuel's safety on the premises. See id. In order to recover on such a claim, Samuel would have to prove:
(1) That Wal-Mart had actual knowledge or constructive notice of some condition on the premises;
(2) that the condition posed an unreasonable risk of harm;
(3) that Wal-Mart did not exercise reasonable care to reduce or eliminate the risk; and
(4) that Wal-Mart's failure to use such care proximately caused Samuel's injuries.
See id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). Liability for knowledge of a potentially harmful condition can be established either by:
(1) proof of actual knowledge — that employees either caused the harmful condition or were told of the harmful condition prior to the plaintiff's injury therefrom; or
(2) proof of constructive notice — that 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. App.-Houston [1st] 2002, no pet.) (citing Keetch, 845 S.W.2d at 264); see also Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002) ("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.").
C. No-Evidence Summary Judgment Analysis
Wal-Mart's motion for summary judgment alleged that because Samuel had "failed to produce any temporal evidence of how long the alleged glitter was on the floor prior to the accident . . . she [could not] demonstrate knowledge or notice on Wal-Mart's part." The burden then shifted to Samuel to raise a fact issue by producing more than a scintilla of evidence on the challenged element of actual knowledge or constructive notice. TEX. R. CIV. P.166a(i). We hold that she did not.
The only summary judgment evidence attached to either of Samuel's responses is her affidavit, in which she alleges that:
1. while [Samuel] was in the store [she] went over to the pharmacy department to purchase [her] items;
2. without any fault of [Samuel], [she] slipped and fell in the main isle [sic] adjacent to the pharmacy department;
3. prior to [her] fall, [Samuel] did not see any warning signs posted in the store warning customers . . . of the potentially dangerous condition in the store;
4. [Samuel] did not cause to have any liquid thrown on the floor at the pharmacy department;
5. that there were no signs put up by [Wal-Mart] warning [Samuel] or its customers about the potentially dangerous condition on the floor in that department;
6. that [Samuel] slipped and fell on the floor at the main isle [sic] adjacent to the pharmacy in [Wal-mart's] store; and
7. that as a result of the fall, [Samuel] became injured.
Though Samuel's affidavit shows that she lacked notice of any dangerous conditions on the floor, none of the averments in her affidavit address the issue of Wal-Mart's actual or constructive notice of a hazardous condition in its store. As such, she failed to raise a fact issue on the challenged element of Wal-Mart's actual knowledge or constructive notice. Thus, the trial court properly granted Wal-Mart's motion for summary judgment on no-evidence grounds. Because Samuel failed to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged element of her claim, we need not analyze whether Wal-Mart met its burden on its motion for summary judgment on traditional grounds. See Ridgway, 135 S.W.3d at 600.
CONCLUSION
We overrule Samuel's sole issue on appeal. We affirm the judgment of the trial court.