Christopher Norman v. Christopher Henkel and Lisa Henkel

407 S.W.3d 502, 2013 WL 3895213, 2013 Tex. App. LEXIS 9390
CourtCourt of Appeals of Texas
DecidedJuly 30, 2013
Docket14-12-00995-CV
StatusPublished
Cited by4 cases

This text of 407 S.W.3d 502 (Christopher Norman v. Christopher Henkel and Lisa Henkel) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher Norman v. Christopher Henkel and Lisa Henkel, 407 S.W.3d 502, 2013 WL 3895213, 2013 Tex. App. LEXIS 9390 (Tex. Ct. App. 2013).

Opinions

OPINION

SHARON McCALLY, Justice.

The trial court granted summary judgment in favor of appellees Christopher and Lisa Henkel on appellant Christopher Norman’s claims against them for premises liability, negligence, and gross negligence arising from injuries Norman alleges he sustained when he slipped on ice accumulated on the walkway of Henkel’s home. We reverse and remand.

I

January 9, 2010, was an unusually cold day in Houston; temperatures were below freezing, and there was a hard-freeze warning in effect until the following day. Norman is a mail carrier whose walking route included the Henkels’ neighborhood, where the homes have mail slots in the front doors. When Norman got to the Henkels’ house that morning, he gave the mail directly to Lisa, who was standing at the front door. Lisa contends she cautioned Norman to be careful and specifically mentioned the icy conditions. Norman contends that Lisa never said anything to him about ice anywhere on her premises and he saw no ice on the property as he approached to deliver the mail. Norman agrees that Lisa said, “[DJon’t slip,” after he gave her the mail. As Norman walked away, he slipped and fell on a patch of ice on the Henkels’ walkway.

Norman sued the Henkels for premises liability, negligence, and gross negligence, seeking damages for the injuries he sustained in the fall. The Henkels moved for a traditional summary judgment, arguing that they were entitled to judgment as a matter of law because “all evidence presented by either side shows Defendant Lisa Henkel explicitly warned Plaintiff regarding potentially icy conditions just seconds before he fell.” The trial court [504]*504granted the motion and rendered a take-nothing judgment against Norman. This appeal followed.

II

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In a traditional summary-judgment motion, the movant bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Joe v. Two Thirty Nine Venture, 145 S.W.3d 150, 157 (Tex.2004). A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact that defeats summary judgment. Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

As a part of our standard of review, we examine the summary judgment record, indulging every reasonable inference in favor of the non-movant, resolving any doubts arising from the evidence in his favor, and taking as true all evidence favorable to him. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

Premises liability is a special form of negligence where the duty owed to the plaintiff depends on the plaintiffs status at the time of the incident. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). In this case, it is undisputed that Norman was an invitee. Thus, the Henk-els owed him a duty “to exercise reasonable care to protect against danger from a condition that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover.” Scott and White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex.2010) (quoting CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000)). This duty is discharged if the property owner either warned the invitee of the condition or made the condition reasonably safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 771 (Tex.2010); Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). In other words, if the evidence conclusively establishes that the property owner adequately warned the invitee of the condition, the property owner cannot be found liable as a matter of law.

Ill

In his first issue, Norman argues the trial court erred by granting the Henkels’ motion for summary judgment because there was a genuine issue of material fact as to the adequacy of Lisa’s warning.1

[505]*505Resolving any doubts from the evidence in Norman’s favor, we assume that Lisa said, “Don’t slip.” We also credit Norman’s testimony that Lisa did not say anything about ice on her walkway, that he did not see ice on the walkway, and had not encountered ice during his walking route. The only reasonable inference that arises from this evidence is, that Lisa possessed information about a condition on her premises that Norman did not possess.

The parties join issue over whether Lisa’s statement, “Don’t slip,” was too general to constitute an adequate warning as a matter of law. Norman contends, because the statement did not provide “sufficient information to determine what the danger is, where the danger is, what steps might be taken to avoid the danger, or even whether the danger is such that the recipient should choose not to enter the premises.” The Henkels argue that the statement is sufficiently specific because slipping is “the specific hazard to which [Norman] succumbed.”

We agree with the Henkels that Lisa did not need to instruct Norman regarding how to avoid the dangerous condition on her property. We observed in 2002 that “[w]e have found no case that requires the owner or occupier to also explain how an invitee can avoid the condition of which she has been warned.” Bill’s Dollar Store, 77 S.W.3d at 370. However, we have also held unequivocally that the owner or occupier must warn the invitee “of unreasonable risks of harm either known to the owner or which would be known to him by reasonable inspection or by making the premises reasonably safe.” Pipkin v. Kroger Texas, L.P. 383 S.W.3d 655, 672 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (citing

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407 S.W.3d 502, 2013 WL 3895213, 2013 Tex. App. LEXIS 9390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-norman-v-christopher-henkel-and-lisa-henkel-texapp-2013.