Durham, Anna L. v. Wal-Mart Stores, Inc.

• Court: Court of Appeals of Texas
• Decided: March 6, 2003
• Docket: 14-02-00469-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 6, 2003

Affirmed and Memorandum Opinion filed March 6, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00469-CV

ANNA LOIS DURHAM, Appellant

V.

WAL-MART STORES, INC., Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 01-41562

M E M O R A N D U M   O P I N I O N

Appellant, Anna Durham, contends the trial court erred in granting summary judgment in her premises liability case against appellee Wal-Mart Stores, Inc.  On appeal, Durham argues 1) Wal-Mart=s motion for summary judgment was premature under the court=s docket control order, and 2) the trial court erred in finding no evidence existed that Wal-Mart had actual or constructive knowledge of the dangerous condition existing on its premises.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex R. App. P. 47.1.  We affirm.

Factual Background

Durham entered a Wal-Mart store to purchase a can of motor oil.  Walking down an aisle, she encountered two Wal-Mart employees and asked for directions to the motor oil section.  One of the employees pointed Durham to a display at the end of the aisle.  Durham  then made her way to the display, selected a can of motor oil, and began to retrace her steps.  As she approached the section of the aisle where she had asked for directions, Durham stepped on a sheet of plexiglass on the floor of the aisle and began to slip.  One of the employees helped Durham off of the sheet of plexiglass.  Durham subsequently filed this lawsuit, alleging pain and injury to her back as a result of the accident.

Premature Motion for Summary Judgment

In her first complaint, Durham contends the trial court prematurely heard and ruled upon Wal-Mart=s no-evidence motion for summary judgment.  See Tex. R. Civ. P. 166a(i).  Wal-Mart alleges Durham misread the trial court=s docket control order.  The docket control order does not appear in the trial record.  Although Durham attached a copy of the order to her brief, we may consider only those facts reflected in the record and may not look to documents attached as exhibits or appendices to briefs or motions not in the record.  See Tex. R. App. P. 38.1(f); 38.1(h); 34.1; see also Silk v. Terrill, 898 S.W.2d. 764, 766 (Tex. 1995); Sewell v. Adams, 854 S.W.2d 257, 259, n.1 (Tex. App.CHouston [14th Dist.] 1993, no writ).  Thus, absent support for Durham=s allegations in the record, we look only to whether Wal-Mart=s motion for summary judgment complied with the Texas Rules of Civil Procedure. 

A no-evidence motion for summary judgment may be filed and heard after Aadequate time for discovery.@  See Tex. R. Civ. P. 166a(i).  A party opposing such a motion due to inadequate time for discovery must file either an affidavit explaining the need for further discovery or a verified motion for continuance.  See Tex. R. Civ. P. 166a(g); Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200B01 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  As Durham did neither, we find the trial court did not err in hearing and ruling on Wal-Mart=s motion.

Actual or Constructive Knowledge

In her next issue on appeal, Durham argues the trial court erred in granting Wal-Mart=s no-evidence motion for summary judgment and finding no evidence existed that Wal-Mart had  actual or constructive knowledge of the condition causing Durham=s injury.  In reviewing a no-evidence motion for summary judgment, we view the proof in the light most favorable to the non-movant, disregarding all contrary proof and inferences.  See Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  If the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact, it is improper to grant a no-evidence motion for summary judgment.  Id.  More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.  See id.

To recover in a premises liability case, a claimant must prove four things: 1) actual or constructive knowledge of some condition on the premises by the owner; 2) that the condition posed an unreasonable risk of harm; 3) that the owner did not exercise reasonable care or eliminate the risk; and 4) that the owner=s failure to use such care proximately caused the plaintiff=s injuries.  Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1988).  A slip-and-fall plaintiff satisfies the actual or constructive element by establishing either 1) the defendant placed the substance on the floor, 2) the owner actually knew the substance was on the floor, or 3) it is more likely than not the 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).  Durham first argues Wal-Mart created the dangerous condition when its employees placed the plexiglass sheet on the floor of an aisle.  However, Durham points to nothing in the record indicating Wal-Mart employees created the hazard other than her own speculative testimony.  Thus, we find the mere existence of a sheet of plexiglass on the store floor, without more, is not evidence that a Wal-Mart employee placed it there.

Alternatively, Durham contends Wal-Mart had constructive knowledge of the unsafe condition.  Durham argues that because the accident took place in close proximity to where Wal-Mart employees had been working, constructive knowledge existed.  Though proximity evidence is often relevant, there must also be some proof of the duration of the hazard before liability can be imposed on a premises owner for failing to discover, rectify, or warn of the dangerous condition.  Reece, 81 S.W.3d at 816.  Without such a temporal inquiry, premise owners would be subject to strict liability for any dangerous condition on their premises, an approach clearly rejected by the Texas Supreme Court.  See id.  In the instant case, Durham put forth no evidence pertaining to how long the plexiglass sheet had been on the floor.  In fact, Durham=s own testimony indicated it could not have been present for long, as it was not there when she first walked down the aisle moments before her accident.  We hold the trial court did not err in determining there was no evidence that Wal-Mart possessed constructive knowledge of the unsafe condition.

Durham=s appellate issues are overruled and the trial court=s judgment is affirmed.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2003.

Panel consists of Justices Frost, Fowler, and Edelman.