Claudia Conditt v. Animal Clinic of Forest Hill

• Court: Court of Appeals of Texas
• Decided: July 6, 2023
• Docket: 02-22-00514-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00514-CV ___________________________

CLAUDIA CONDITT, Appellant

V.

ANIMAL CLINIC OF FOREST HILL, Appellee

On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153-323016-21

Before Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

Claudia Conditt appeals from the trial court’s grant of summary judgment in

favor of Animal Clinic of Forest Hill (the Clinic). Conditt sued the Clinic after she

was injured when she tripped over a scale on the floor outside an exam room. In two

issues, she argues that the trial court erred by granting summary judgment because

there was a fact issue about “whether, under the specific circumstances of this danger,

[the scale] was open and obvious to a reasonably prudent person similarly situated”

and because “of the necessary[-]use exception in that [Conditt] had to use the egress

that was too narrow and contained the scale.” Because we hold that the necessary-use

exception does not apply and that the Clinic established its right to summary

judgment, we will affirm.

Background

On March 22, 2019, Conditt took her chihuahua to the Clinic. On her way to

the exam room, she was asked to put the dog on a scale. The scale was on the floor in

the hallway area outside two exam rooms. After weighing her dog, Conditt took the

dog into the room to the right of the scale. She left the room after about twenty

minutes; Conditt claimed in her deposition that she was carrying the dog, while the

Clinic’s owner testified in her own deposition that the dog walked out on a leash

ahead of Conditt. Upon leaving the room, Conditt turned to her right and fell. She

2 later sued, asserting that she had tripped on the scale and that the Clinic had failed to

make the premises safe from the danger presented by the scale.1

The Clinic filed a traditional motion for summary judgment on the ground that

it did not breach any duty to Conditt. It asserted that it had a duty to warn Conditt

only of dangerous conditions of which it was aware but Conditt was not, that the

scale was not a dangerous condition, that the scale was an open and obvious

condition and known to Conditt, and that it thus had no duty to warn her.

To support its motion, the Clinic attached copies of Conditt’s deposition in

which she stated that she had put her dog on the scale before entering the exam

room, that she had been in the room for “15 to 20 minutes,” and that when she left

the room, the scale was in the same place. It also attached a photograph of the hallway

area outside the exam rooms with the scale on the floor in between the rooms. The

photograph shows a clear path outside the exam rooms for a person walking from the

exam rooms straight to what appears to be an area with a chair, as well as a clear path

for a person to walk around the scale in the hallway area between the exam rooms.

Conditt filed a response asserting that the scale was an unreasonably dangerous

tripping hazard and that she did not have the opportunity to identify and perceive the

1 In addition to a premises liability claim, Conditt also sued for negligence, and the Clinic sought summary judgment on the ground that because Conditt was injured as a result of a condition on the property, she could recover only under a premises liability theory. On appeal, Conditt does not challenge the summary judgment on her negligence claim.

3 hazard because she did not see it in her peripheral vision and had not retained in her

working memory any knowledge of the scale’s placement. To her response, Conditt

attached an affidavit from an engineering consultant in the field of safety engineering.2

The affidavit stated that the scale created an unreasonable trip hazard because it was

too low to the floor and too near to the door of the exam room for it to be seen by

someone exiting the room. The affidavit further discussed the concept of “working

memory,” which the engineer described as the ability to remember “a limited amount

of information for immediate use temporarily.” He stated that although Conditt had

become aware of the scale on the floor when she weighed her dog, “such knowledge

clearly did not remain in her working memory.”

The trial court initially denied the Clinic’s summary judgment motion, but the

Clinic filed a motion to reconsider. After a hearing, the trial court granted the Clinic’s

summary judgment motion. The trial court then signed a final judgment ordering that

Conditt take nothing.

Standard of Review

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable

2 The engineer stated in his affidavit that safety engineering includes workplace safety and “human factors” and ergonomics. He explained that “human factors and ergonomics” refers to ensuring that tasks, equipment, and facilities are designed, constructed, and maintained to be safe for use, and it includes taking into account “human capabilities and limitations,” human physical characteristics, visual acuity and perception, and cognitive abilities.

4 to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

could, and disregarding evidence contrary to the nonmovant unless reasonable jurors

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A

defendant that conclusively negates at least one essential element of a plaintiff’s cause

of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez,

315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

Analysis

I. Premises Liability General Principles

A landowner generally has no duty to protect or warn an invitee against

dangers that are open and obvious or otherwise known to the invitee. Austin v. Kroger

Tex., L.P., 465 S.W.3d 193, 207 (Tex. 2015). However, the Texas Supreme Court has

recognized a “necessary-use” exception to this general rule. Id. at 206. That exception

applies “when the facts demonstrate that (1) it was necessary that the invitee use the

unreasonably dangerous premises and (2) the landowner should have anticipated that

the invitee was unable to avoid the unreasonable risks despite the invitee’s awareness

of them.” Id. When the exception applies, the plaintiff’s awareness of the risk does not

relieve the landowner’s duty to make the premises safe, although it may remain

relevant to the issue of proportionate responsibility. Id. at 208.

5 II. No Duty to Warn or Make Safe

Conditt’s deposition testimony established that the obstacle presented by the

scale was known to her. She did not merely see the scale on the floor before entering

the exam room. She used it herself, not more than twenty minutes before she fell.

Because the Clinic’s summary judgment evidence established that Conditt knew about

the scale’s existence and placement on the floor, it thus established that the Clinic had

no duty to warn her about the scale or to protect her from any hazard that it posed.

Id. at 207.

Conditt argues that the photographs in the summary judgment evidence show

that there was not enough space around the scale to safely travel from the exam room

door to the front door. We disagree that the photographs raise any fact question

about whether there is enough space to safely walk past the scale, and Conditt offered

no evidence disputing that she was able to enter the exam room without stepping over

the scale.

Conditt relies on the engineer’s affidavit to argue that she raised a fact issue on

duty. That report, however, was not sufficient to defeat summary judgment under the

facts of this case. We take no issue with the engineer’s assertion that an object’s height

can make it a hazard to passers-by who are unaware of its placement. But in this case,

Conditt was aware of and used the object, and she therefore knew of its height and

placement. As for the engineer’s “working memory” statements, regardless of whether

the passage of time or other circumstances could, in some situations, raise a fact issue

6 about a plaintiff’s continued knowledge of a condition on a premises, it did not do so

in this case, when Conditt not only passively observed but also actually used the scale

herself only twenty minutes before she tripped over it. See, e.g., Wallace v. ArcelorMittal

Vinton, Inc., 536 S.W.3d 19, 25–26 (Tex. App.—El Paso 2016, pet. denied) (holding no

duty to warn invitee about dangers on the floor that she had seen fifteen minutes

before she tripped)3; Eagle Lincoln-Mercury Inc. v. Hazlewood, 391 S.W.2d 180, 183 (Tex.

App.—Fort Worth 1965, writ ref’d n.r.e.) (holding that defendant had no duty to

warn of danger at car dealership of which plaintiff was aware but had forgotten while

talking to a salesperson).

Conditt spends several pages of her brief arguing about whether the scale was

an open and obvious condition, but the evidence established that the scale was a

condition of which Conditt was actually aware. See Los Compadres Pescadores, L.L.C. v.

Valdez, 622 S.W.3d 771, 788 & n.13 (Tex. 2021) (stating that whether a danger is open

and obvious is a question of law determined under an objective test but that a

landowner may also have no duty to warn of or make a condition safe if the claimant

3 Conditt attempts to distinguish Wallace based on the plaintiff’s status in that case as an employee of the premises owner (technically, an employee of a security service employed by the premises owner, a steel mill) and based on the area in which the plaintiff tripped usually having metal objects “all over the floor” and outside the machine shop. Wallace, 536 S.W.3d at 21. However, these facts do not adequately distinguish Wallace. Wallace involved the plaintiff, an invitee, tripping over an object on the ground that the plaintiff had observed fifteen minutes before tripping, and it was the plaintiff’s knowledge of the condition that negated the premises owner’s duty. Id. at 25–26. The same situation exists in this case.

7 subjectively had actual knowledge of the dangerous condition); Austin, 465 S.W.3d at

202–03 (characterizing the landowner’s duty as a duty to make safe or warn of

unreasonably dangerous conditions that are not open and obvious or otherwise known

to the invitee); see also United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 801 (Tex.

2022) (holding 3/4-inch divot in parking lot was not unreasonably dangerous as a

matter of law).

Conditt next argues that “[t]here is not a shred of evidence that [she] had

‘knowledge and full appreciation of the nature and extent of the danger.’” This

argument relates to whether the condition was open and obvious. See SandRidge Energy,

Inc. v. Barfield, 642 S.W.3d 560, 563 (Tex. 2022) (stating that an open and obvious

dangerous condition “raise[d] no obligation to warn as a matter of law” because in

that case, an invitee exercising ordinary care would have knowledge and full

appreciation of the nature and extent of danger). Conditt did not, however, present

any summary judgment evidence that the scale was dangerous in any way other than

as a trip hazard due to its placement on the floor, and she was not injured by any

other condition created by the scale. Thus, the only knowledge Conditt needed to

have to avoid any danger was the knowledge of the scale’s placement on the floor.

The summary judgment evidence established that she had that knowledge. Because

any danger from the scale was known to Conditt, the Clinic had no duty to warn her

of it. See Austin, 465 S.W.3d at 204.

8 In her reply brief, Conditt argues that there is no evidence that she knew that a

scale with a height of only 3/4 inch could create a dangerous condition. But the

evidence established that she had used the scale herself and would thus know its

approximate height and its location on the floor. Conditt did not need to know the

exact height of the scale to know that it was on the floor or to know to avoid tripping

over it.

Conditt further asserts that the Clinic judicially admitted that the scale was not

dangerous and therefore cannot argue that the danger presented by the scale was open

and obvious. She argues in her reply brief that the Clinic’s brief “chose to ignore the

fact that it had repeatedly represented to the trial court the argument that the scale

was NOT dangerous” and “glossed over the facts that it injected a fact issue as to

whether the scale was unreasonably dangerous.” This argument does not help

Conditt. If the scale presented no danger, the Clinic would have no duty to warn of it

or remedy it. Further, even if the Clinic’s legal arguments could raise a fact issue, its

arguments did not raise a fact issue about Conditt’s knowledge of the scale’s

placement on the floor. See Hillis v. McCall, 602 S.W.3d 436, 444 (Tex. 2020)

(upholding summary judgment on premises liability claim on the basis that the

defendant had negated a duty to plaintiff as a matter of law and stating that the court

would not “impose a duty on a landowner to warn an invitee about something [the

invitee] already knows”). Because the summary judgment evidence established that

9 Conditt had actual knowledge of the scale, the trial court did not err by granting

summary judgment for the Clinic. We overrule Conditt’s first issue.

III. Necessary-Use Exception

In Conditt’s second issue, she argues that the necessary-use exception applied

because she had “to use the egress that was too narrow and contained the scale,” and

the trial court therefore erred by granting summary judgment. 4 We disagree.

Photographs included with the summary judgment evidence show that the hallway

was wide enough that there was a clear path in front of the scale. That is, the

summary judgment evidence established that it was not necessary for Conditt to walk

on the side of the hallway with the scale or that she could not avoid walking over the

scale. See Zappa v. IKEA Holdings US, Inc., No. 14-17-00936-CV, 2018 WL 4702382, at

*4 (Tex. App.—Houston [14th Dist.] Oct. 2, 2018, no pet.) (mem. op.) (holding that

IKEA negated necessary-use exception through affidavit and photographs

establishing alternate route to parking lot that would have allowed plaintiff to avoid

walking through barriers that caused her injury); Nethery v. Turco, No. 05-16-00680-CV,

2017 WL 2774448, at *3 (Tex. App.—Dallas June 27, 2017, no pet.) (mem. op.)

(holding that the summary judgment evidence showed that it was not necessary for

the plaintiff to use the side of driveway covered in ice). Because the summary

4 The Clinic argued below that Conditt had failed to plead the necessary-use exception. On appeal, Conditt contends that her pleadings gave fair notice of the exception. For purposes of this appeal, we assume that Conditt adequately pled the necessary-use exception.

10 judgment evidence negated Conditt’s claim that she was unable to avoid the scale, the

necessary-use exception does not apply. See Austin, 465 S.W.3d at 207. We overrule

Conditt’s second issue.

Conclusion

Having overruled Conditt’s two issues, we affirm the trial court’s judgment.

/s/ Mike Wallach Mike Wallach Justice

Delivered: July 6, 2023