Opinion issued May 23, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00917-CV ——————————— JUANITA DE LUNA, Appellant V. BUC-EE’S, LTD., Appellee
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 105077-CV
MEMORANDUM OPINION
Appellant Juanita De Luna sued appellee Buc-ee’s, Ltd. for premises liability
after slipping and falling on a substance on the floor of the coffee area in a Buc-ee’s
store and allegedly sustaining injuries. Buc-ee’s filed a no-evidence motion for summary judgment focused on the knowledge element of De Luna’s premises
liability claim. Buc-ee’s argued that De Luna presented no evidence that it had actual
or constructive knowledge of a dangerous condition in the store. The trial court
granted the motion and entered a take-nothing judgment against De Luna.
In two issues on appeal, De Luna contends that she produced more than a
scintilla of evidence showing that (1) Buc-ee’s knew or should have known that the
configuration of the store’s coffee area, including the lack of additional floor mats,
posed a dangerous condition; and (2) Buc-ee’s had actual knowledge of the
substance on the floor before De Luna slipped and fell in it. We affirm.
Background
On November 21, 2017, De Luna and her husband were driving to Austin
when they stopped at a Buc-ee’s store in Fort Worth. While her husband pumped
gas, De Luna went inside the store to use the restroom facilities and buy a cup of
coffee. After exiting the restroom, De Luna turned toward the coffee area and slipped
and fell on a substance on the tile floor that appeared to her to be “[w]ater. It looked
like water . . . about half a cup.” De Luna hurt her knee, but she was able to stand on
her own. Jonathan Torga, an assistant general manager at the store, approached De
Luna and asked if she was okay. A few minutes later, Frank Robles, a Buc-ee’s
cashier, cleaned the area where De Luna had fallen. The store’s video surveillance
cameras recorded the fall.
2 De Luna filed suit against Buc-ee’s in October 2019 asserting a single cause
of action for premises liability. De Luna alleged that she was an invitee to the Buc-
ee’s store, and thus Buc-ee’s owed her duties to keep the store reasonably safe, to
warn of or make safe dangerous conditions, and to inspect the store. She alleged that
Buc-ee’s violated these duties because there was a liquid substance on the floor,
which posed an unreasonable risk of harm, and she slipped and fell on the liquid,
causing her injury. De Luna alleged that Buc-ee’s had actual or constructive
knowledge of the unreasonably dangerous condition in its store.
Buc-ee’s filed a no-evidence motion for summary judgment in September
2022. In its motion, Buc-ee’s argued that De Luna had no evidence of any essential
element of her premises liability claim. Buc-ee’s specifically focused on the
knowledge element, arguing that there was no evidence that (1) Buc-ee’s had actual
or constructive knowledge of a dangerous condition in its store; and (2) Buc-ee’s did
not exercise adequate care by warning of a dangerous condition or by making the
condition reasonably safe.
In response, De Luna argued that (1) Buc-ee’s knew or should have known
that the configuration of the store’s coffee area posed a dangerous condition on the
store premises; and (2) Buc-ee’s had actual knowledge of the substance on the floor
before she slipped and fell in it. Regarding the configuration of the coffee area, De
Luna argued that Buc-ee’s placed the coffee lids, creamer, and sugar on a display
3 island six feet away from the coffee cups and dispensers, thereby requiring
customers to walk six feet from the dispensers with a full, open cup of coffee to
retrieve a lid and any coffee condiments. De Luna also argued that although Buc-
ee’s placed non-slip mats in front of the coffee dispensers, it did not place any mats
on the floor between the coffee dispensers and the display island. De Luna argued
that it was reasonably foreseeable and common knowledge that customers would
spill coffee while walking with an open cup across a bare floor to retrieve a lid and
condiments, and thus Buc-ee’s knew or should have known of the dangerousness of
the configuration of the coffee area.
To support her argument, De Luna relied on a video recording from the store’s
surveillance camera, her deposition testimony, and the deposition testimony of two
Buc-ee’s employees. The video recording showed the layout of the coffee area, and
it recorded De Luna’s slip and fall in the area. The coffee cups and dispensers were
placed along a back wall, and mats covered the floor immediately in front of the
dispensers. Coffee lids and condiments were located on a display island
approximately six feet away from the dispensers, and there were no mats on the floor
in front of the display island or in the few feet between the island and the mats in
front of the coffee dispensers. De Luna slipped and fell on the uncovered floor just
beyond the mats that were placed in front of the coffee dispensers.
4 In her deposition, De Luna testified that she slipped and fell in “[w]ater. It
looked like water . . . about half a cup.” She did not know how long the water had
been on the floor before she slipped and fell on it.
Frank Robles, who was working as a cashier in the store when De Luna fell,
testified at his deposition that “[t]o some people,” it is difficult to walk with a full
cup of water without spilling it. De Luna primarily relied on this testimony to
establish that Buc-ee’s knew or should have known that the configuration of the
coffee area posed an unreasonable risk of someone slipping on liquid on the ground.
Jonathan Torga, who was working as an assistant general manager at the store
when De Luna fell, testified that Buc-ee’s is responsible for deciding where to place
floor mats in the store. De Luna relied on this testimony to argue that Buc-ee’s knew
that the configuration of the coffee area was unreasonably dangerous.
Regarding her second argument that Buc-ee’s had actual knowledge of the
substance on the floor, De Luna relied on the video recording and Robles’s
testimony. De Luna argued that the video recording showed Robles leave an
employee area next to the coffee area with a cleaning tool a few minutes after De
Luna fell, and he proceeded to clean the area where she fell. De Luna further argued
that Robles testified he did not routinely carry cleaning tools, even when inspecting
the coffee area for debris. De Luna thus argued that Robles’s testimony and the video
5 recording raised a fact issue on whether Robles was aware of the spill before De
Luna slipped and fell in the substance.
The video recording shows that after De Luna fell, Robles walked
emptyhanded from another part of the store towards the coffee area. He passed
through the area where De Luna fell, through the coffee area, and he briefly entered
a door at the opposite end of the coffee area. Robles exited the door carrying a
cleaning tool. He went to the area where De Luna had fallen and appeared to clean
the floor.
Robles testified that part of his cashier duties included “running the coffee
bar” and “maintaining the cleanliness” of the coffee area. The coffee area was one
of several high-traffic areas in the store, and he walked through the coffee area
“every 15 minutes, pretty often, just looking for any potential debris, any little
droplets,” and “any potential clean-up opportunities.” He would “spot check the
floors, sweep if there was trash, wipe down counters,” and do “general cleaning.”
Robles denied, however, that spills frequently occurred in the area where De Luna
slipped and fell.
At the time of his deposition, Robles could not recall De Luna’s slip and fall
or whether anyone had notified him that De Luna had fallen before he cleaned the
area. He also could not recall seeing anything on the ground in the area after De
Luna’s fall. Robles testified that the video recording showed him using a Swiffer to
6 clean the area, and he generally used a Swiffer to clean “dirt stuck on the tile [floor],
sticky spots.”
In his deposition testimony, Torga confirmed that employees were required to
inspect the store, including the floors, every fifteen minutes. Torga and the other
store managers were also required to walk the store at least once per hour ensuring
that, among other things, the floors were clean. Buc-ee’s required its employees to
clean spills “immediately,” and Buc-ee’s constantly trained its employees on safety
concerns. Torga testified that mats were placed in front of the coffee dispensers
because the dispensers “could lead to spills,” but mats were not placed on the floor
between the coffee dispensers and the display island because there had been no spills
there. Torga testified that the Buc-ee’s store sold “over 10,000 cups [of coffee] every
couple of days,” and customers were more likely to spill coffee while dispensing it
rather than while walking to the coffee condiment island. Torga testified that after
De Luna slipped and fell, he approached her and asked if she was okay. Torga looked
on the floor where De Luna fell, but he denied seeing any substance on the floor.
Buc-ee’s filed a reply arguing that De Luna offered no evidence, such as
expert testimony, supporting her argument that the configuration of the coffee area
created an unreasonably dangerous condition. Buc-ee’s also argued that De Luna
offered no evidence of any prior slips and falls that would place Buc-ee’s on notice
of a dangerous condition in the store. To the contrary, Buc-ee’s pointed to its
7 employees’ deposition testimony denying that additional mats were necessary
because spills rarely occurred in the coffee area, and there had been no prior slips
and falls in the area. Buc-ee’s also relied on Robles’s testimony stating that he did
not recall the incident, as well as the video recording depicting Robles cleaning the
area with a dry Swiffer that was used to clean dirt or sticky spots.
The trial court granted Buc-ee’s no-evidence motion for summary judgment
and entered a final, take-nothing judgment on De Luna’s sole claim. This appeal
followed.
Premises Liability
On appeal, De Luna contends that the trial court erred by granting summary
judgment because she raised genuine issues of material fact on the knowledge
element of her premises liability claim. Specifically, De Luna argues that fact issues
exist on whether: (1) Buc-ee’s knew or should have known that the configuration of
the coffee area, including the lack of additional floor mats, posed an unreasonable
risk of harm to her; and (2) Buc-ee’s had actual knowledge of the substance on the
floor on which she slipped and fell.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. JLB Builders,
L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); Walker v. Eubanks, 667
S.W.3d 402, 406 (Tex. App.—Houston [1st Dist.] 2022, no pet.). We review the
8 summary judgment evidence in the light most favorable to the party against whom
summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. Walker, 667 S.W.3d at 406–07 (citing Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006)).
After adequate time for discovery, a party may move for summary judgment
on the ground that no evidence exists of one or more essential elements of a claim
or defense on which the adverse party bears the burden of proof at trial. TEX. R. CIV.
P. 166a(i). “A properly filed no-evidence motion shifts the burden to the
nonmovant to present evidence raising a genuine issue of material fact supporting
each element contested in the motion.” JLB Builders, 622 S.W.3d at 864. To
successfully challenge each ground advanced in a no-evidence summary judgment
motion, an appellant must cite the specific evidence in the record that she relied upon
to defeat the motion and describe why that evidence raised a fact issue. Walker, 667
S.W.3d at 407; Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 868–69 (Tex.
App.—Houston [1st Dist.] 1999) (affirming no-evidence summary judgment on
claims for which nonmovant did not meet burden “to point out” summary judgment
evidence raising genuine issue of material fact), aff’d, 73 S.W.3d 193 (Tex. 2002).
If the nonmovant produces more than a scintilla of evidence raising a genuine
issue of material fact on each challenged element, then no-evidence summary
9 judgment is improper. TEX. R. CIV. P. 166a(i); JLB Builders, 622 S.W.3d at 864.
More than a scintilla of evidence exists if the evidence would allow reasonable and
fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003). Evidence is not more than a scintilla when it is so
weak as to create a mere surmise or suspicion of a fact. Id.
B. Governing Law
The parties do not dispute that De Luna was an invitee to the Buc-ee’s store
and that Buc-ee’s owned the store. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193,
202 (Tex. 2015) (“An invitee is one who enters the property of another with the
owner’s knowledge and for the mutual benefit of both.”) (internal quotations and
citation omitted). A store owner owes an invitee “a duty to exercise reasonable care
to protect” the invitee “from dangerous conditions in the store that were known or
reasonably discoverable.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002); Watanabe v. Summit Path Partners, LLC, 650 S.W.3d 112, 126 (Tex. App.—
Houston [1st Dist.] 2021, no pet.). Exercising reasonable care encompasses “a duty
to make safe or warn against any concealed, unreasonably dangerous conditions of
which the [store owner] is, or reasonably should be, aware but the invitee is not.”
Austin, 465 S.W.3d at 203; Watanabe, 650 S.W.3d at 126. A store owner generally
has no duty, however, to warn invitees of hazards that are open, obvious, or known
10 to the invitee. Austin, 465 S.W.3d at 203; Watanabe, 650 S.W.3d at 126. A property
owner is not the insurer of invitees’ safety. Reece, 81 S.W.3d at 814.
To prevail on a premises liability claim based on a slip and fall, a plaintiff
must prove that: (1) the defendant had actual or constructive knowledge of some
condition on the premises, such as a slippery substance on the floor; (2) the condition
posed an unreasonable risk of harm to the plaintiff; (3) the defendant did not exercise
reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure to use
such care proximately caused the plaintiff’s personal injuries. United Scaffolding,
Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017). The threshold requirement in a
premises liability claim is the existence of the owner’s actual or constructive
knowledge of an unreasonably dangerous condition on the premises. See Motel 6
G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curiam); Farrar v. Sabine
Mgmt. Corp., 362 S.W.3d 694, 700 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Establishing actual knowledge requires proof that the defendant either placed
the substance on the floor or actually knew it was on the floor. Brookshire Bros.,
Ltd. v. Aldridge, 438 S.W.3d 9, 15–16 (Tex. 2014). Establishing constructive
knowledge, on the other hand, requires proof that “it is more likely than not that the
condition existed long enough to give the premises owner a reasonable opportunity
to discover it.” Id. at 16 (quoting Reece, 81 S.W.3d at 814).
11 C. Analysis
In its summary judgment motion, Buc-ee’s challenged each element of De
Luna’s premises liability claim. To defeat summary judgment, De Luna was required
to present more than a scintilla of evidence of each element of her claim. See TEX.
R. CIV. P. 166a(i); JLB Builders, 622 S.W.3d at 864. The parties focus on the
knowledge element of De Luna’s claim, and our resolution of this element is
dispositive.
1. Whether Buc-ee’s knew or should have known that the configuration of the coffee area posed an unreasonable risk of harm
In her first issue, De Luna contends that she raised a fact issue concerning
whether Buc-ee’s knew or should have known that the configuration of the coffee
area posed an unreasonable risk of harm to her. De Luna argues that it was
reasonably foreseeable that customers would spill coffee because Buc-ee’s placed
coffee lids and condiments on an island display six feet away from the coffee
dispensers instead of right next to the dispensers, thus requiring customers to walk
the short distance with uncovered cups of coffee. She further argues that Buc-ee’s
did not cover the tile floor between the dispensers and the island with anti-slip mats
to prevent customers from slipping in that area.
Generally, the knowledge element of a premises liability claim requires
evidence that the store owner knew or should have known that a particular substance
was on the ground. Reece, 81 S.W.3d at 814; Hernandez v. Kroger Tex., L.P., No.
12 01-18-00562-CV, 2019 WL 3949458, at *4 (Tex. App.—Houston [1st Dist.] Aug.
22, 2019, no pet.) (mem. op.). In some circumstances, however, “the focus of the
inquiry can shift from the specific to the general,” and “a slip-and-fall plaintiff can,
under appropriate facts, rely on the storeowner’s knowledge that its display, itself,
presented an unreasonable fall risk to patrons.” Hernandez, 2019 WL 3949458, at
*4 (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)). The
Texas Supreme Court recently reiterated that “to raise a fact issue as to whether a
common condition may support a premises-defect claim, we have required a
claimant to adduce evidence either of prior complaints or injuries or that some
surrounding circumstance transformed an everyday hazard into one measurably
more likely to cause injury.” Christ v. Tex. Dep’t of Transp., 664 S.W.3d 82, 87–88
(Tex. 2023) (citing H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218–19
(Tex. 1999) (per curiam)).
For example, in Corbin v. Safeway Stores, Inc., Corbin slipped and fell on a
grape on a bare linoleum floor in a grocery store, and he sued the store for his
injuries. 648 S.W.2d at 294. At trial, Corbin alleged that the store’s “chosen self-
service method for displaying green grapes in an open, slanted bin above a green
linoleum tile floor resulted in an unreasonable risk of customers falling on grapes
that have fallen or been knocked to the floor.” Id. at 296. Two store employees
testified that store policy required employees to place large, non-slip mats in front
13 of the grape display, but Corbin testified that no mats were in front of the grape
display when he slipped and fell. Id. at 294. The employees testified that the mat
requirement stemmed from the store’s recognition that customers frequently
knocked grapes onto the floor, “creating a great risk that someone will subsequently
step on a slippery grape peel and fall on the linoleum floor.” Id. The store “knew
from experience that the grape bin was an unusually hazardous and continual source
of slippery material on which customers may fall.” Id. The Texas Supreme Court
held that reasonable jurors could have concluded that the self-service grape display
along with the lack of any covering on the linoleum floor in front of the display
posed an unreasonable risk of customers falling on grapes that dropped on the floor.
Id. at 296; but see Albertsons, LLC v. Mohammadi, — S.W.3d —, No. 23-0041,
2024 WL 1470905, at *4–5 (Tex. Apr. 5, 2024) (per curiam) (explaining that Corbin
was an “exceptional case” from which Texas Supreme Court has “since distanced
[itself],” and Corbin remains applicable only where defendant had policy or practice
that it knew routinely caused unreasonable risk of harm) (citation omitted).
In H.E. Butt Grocery Co. v. Resendez, the Texas Supreme Court clarified that
the mere existence of a self-service display without more does not constitute an
unreasonable risk of harm. 988 S.W.2d at 218. In that case, Resendez slipped and
fell on a grape in front of two self-service grape displays in the produce section of a
grocery store. Id. One display contained packaged grapes, and the other display
14 contained loose grapes in a bowl for sampling. Id. Each display had railing around
the edges and was surrounded by non-slip mats, and the entire produce section was
covered in a non-slip surface. Id. at 218–19. Resendez sued the store and argued at
trial that the grape sampling display posed an unreasonable risk of harm, but she
“presented no evidence that the display created an unreasonable risk of customers
falling on grapes.” Id. The court held that as a matter of law, “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.
Finally, in Hernandez v. Kroger Texas, L.P., this Court considered whether a
grocery store’s self-service water dispenser presented an unreasonable risk of harm
to the store’s customers. 2019 WL 3949458, at *1. The water dispenser was located
on a central aisle containing various drink products. Id. While passing through the
aisle to get milk, Hernandez slipped and fell on water that had accumulated on the
tile floor in front of the dispenser. Id. She sued Kroger for premises liability, and the
trial court granted Kroger’s no-evidence motion for summary judgment focused on
the knowledge element of the claim. Id.
On appeal, Hernandez argued that the water dispenser was unreasonably
dangerous. Id. at *4. She relied on summary judgment evidence showing that access
to the water dispenser was not limited to those intending to use it, but instead it was
located on a central aisle accessible by all customers. Id. at *8. Moreover, store
15 managers testified that the dispenser frequently spilled water on the floor, which
necessitated daily cleaning of spills. Id. The managers also testified that although
mats were placed in front of the dispenser, water would leak beyond the mats. Id.
This Court concluded that Hernandez produced more than a scintilla of evidence
showing “that the nature of the self-service water dispenser was such that water
frequently fell to the floor, outside the mat, in front of the Glacier water dispenser to
create an unreasonable fall hazard for Kroger customers and that Kroger had actual
knowledge of this common event and condition.” Id.
Here, De Luna relies solely on the deposition testimony of Robles to argue
that the configuration of the coffee area constituted an unreasonably dangerous
condition. According to De Luna, Robles acknowledged that it was difficult for some
customers to avoid spilling coffee while walking from the coffee dispensers to the
display island with a lidless cup, and Buc-ee’s employees were required to clean the
area regularly. De Luna argues that this testimony raises a fact question on whether
Buc-ee’s knew or should have known that the configuration of the coffee area posed
an unreasonable risk of harm to her. We disagree.
In the cited portions of his deposition testimony, Robles testified that “[t]o
some people,” it is difficult to walk with a full cup of water without spilling it, and
it is more difficult to keep water in a lidless cup while walking than while standing
stationary. Robles also testified that the coffee area was a high-traffic area, and part
16 of his cashier duties included inspecting the coffee area every fifteen minutes to
“spot check the floors, sweep if there was trash, wipe down counters,” engage in
“general cleaning,” and look “for any potential debris, any little droplets.”
Contrary to De Luna’s argument, Robles did not testify that the store’s
customers have had difficulty walking in the area and not spilling coffee. Rather, he
testified about the general difficulty inherent in walking with an open cup of liquid
without spillage. De Luna does not rely on any evidence tying the increased
difficulty inherent in walking with an open cup of liquid without spillage to actual
spills in the coffee area such that Buc-ee’s was on notice of an unreasonably
dangerous condition. To the contrary, both Robles and Torga denied knowledge of
any spills in the coffee area. And while Buc-ee’s inspected the coffee area every
fifteen minutes, Robles testified that this was part of the store’s general maintenance
procedures. Torga’s testimony confirmed that the quarterly-hour inspections of the
coffee area were due to it being a high-traffic area, not due to spills in that area. The
record contains no evidence showing that these routine inspections were intended to
mitigate a dangerous condition in the coffee area. Cf. Mohammadi, 2024 WL
1470905, at *4–5; Corbin, 648 S.W.2d at 294–95 (stating that evidence showed store
employees considered floor mats necessary because employees could not adequately
supervise floor to ensure it was free of grapes); Hernandez, 2019 WL 3949458, at
17 *8 (stating that store managers testified they knew about frequent spills at water
dispenser which required daily cleaning).
Robles’s testimony is thus distinguishable from the employee testimony in
Corbin that the store “knew from experience that the grape bin was an unusually
hazardous and continual source of slippery material on which customers may fall”
but that the store had failed to place protective mats on the floor when Corbin fell.
See 648 S.W.2d at 294; see also Mohammadi, 2024 WL 1470905, at *4–5. Robles’s
testimony is also distinguishable from the employee testimony in Hernandez that the
store knew water frequently spilled on the floor beyond the mats in front of the water
dispenser and required daily cleaning of the water. See 2019 WL 3949458, at *8.
Unlike here, the plaintiffs in Corbin and Hernandez presented evidence that the store
knew unreasonable hazards existed. This case instead is more analogous to Resendez
because De Luna presented no evidence that the coffee-area configuration created
an unreasonable risk of customers slipping and falling on coffee. See 988 S.W.2d at
219 (“As a matter of law, though, 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.”); see also Christ, 664 S.W.3d at 87–88 (stating that
to raise fact issue on whether common condition may support premises-defect claim,
“we have required a claimant to adduce evidence either of prior complaints or
injuries or that some surrounding circumstance transformed an everyday hazard into
18 one measurably more likely to cause injury”). Robles’s testimony raises only a mere
surmise or suspicion that Buc-ee’s knew or should have known that the configuration
of the coffee area was unreasonably dangerous. See King Ranch, 118 S.W.3d at 751
(stating that evidence does not raise fact issue if it is so weak as to create mere
surmise or suspicion of fact); see also Brookshire Grocery Co. v. Taylor, 222 S.W.3d
406, 408 (Tex. 2006) (“A condition is not unreasonably dangerous simply because
it is not foolproof.”).
In her reply brief, De Luna points out that Torga testified spills do not occur
“often” in the coffee area, and De Luna argues that not often in the context of selling
thousands of cups of coffee per day could be many spills per day. To support this
argument, De Luna relies on the following testimony:
Q. Okay. What makes you think there’s more of a likelihood of spillage while [customers] are filling up rather than when they are walking without a lid on their cup? A. Because they are calculating how much product they put in the cup. Q. Okay. You think customers frequently make errors in how much they are going to fill up their cup? [Buc-ee’s Counsel]: Objection, form. Go ahead. A. I don’t think often. If you’re asking if it happens a lot, I would say no. We sell over 10,000 cups every couple of days, so no.
De Luna’s argument takes Torga’s testimony out of context. In the cited
testimony, Torga referred to errors—or spills—while filling coffee cups at the coffee
dispensers, not spills in the area between the dispensers and the island display where 19 De Luna slipped and fell. Therefore, this testimony does not support an inference
that many spills per day occurred in the area where De Luna slipped and fell.
De Luna also relies on Towers of Town Lake Condominium Association, Inc.
v. Rouhani, which involved a swimming pool rather than a self-service display. See
296 S.W.3d 290, 293 (Tex. App.—Austin 2009, pet. denied). There, Rouhani was
attending her niece’s birthday party at an indoor swimming pool. Id. While sitting
next to the pool, Rouhani was splashed with water. Id. She stood up to move and
immediately slipped and fell on the painted concrete deck. Id. Rouhani filed suit
alleging that the pool owner created an unreasonably dangerous condition by using
a slippery paint on the pool deck. Id.
At trial, the court admitted into evidence a can of the paint used on the deck,
which contained a warning stating that the paint may become slippery when wet and
recommending adding sand to the paint to give it anti-slip properties. Id. at 296.
Rouhani also adduced expert witness testimony that the type of paint used was not
recommended for pool decks and that concrete surfaces are “fairly well known to be
slippery when wet, particularly when they’re painted.” Id. Rouhani’s evidence also
included testimony from the general manager of the pool stating that he knew the
area where paint was applied would become wet frequently, parties were held in the
pool, and “water gets splashed.” Id. at 296–97. The Austin Court of Appeals held
that this evidence supported the conclusion that the pool owner created an
20 unreasonably dangerous condition by using paint without an anti-slip additive in an
area that usually becomes wet when people are present, either from splashing pool
water or entering or exiting the pool. Id. at 297–98.
As discussed above, however, De Luna has not presented any evidence that
Buc-ee’s knew of frequent spills in the coffee area. Nor has De Luna presented any
other evidence showing that the configuration of the coffee area was unreasonably
dangerous. See id. at 296 (stating that use of improper paint on pool deck combined
with pool owner’s knowledge that pool deck was frequently wet supported
conclusion that pool owner created unreasonably dangerous condition). Rouhani
thus supports our conclusion that De Luna must present evidence of a defendant’s
knowledge of an unreasonably dangerous condition.
Finally, as Buc-ee’s points out, there is no evidence that the substance De
Luna slipped and fell on was coffee. De Luna testified that she slipped and fell in
“[w]ater. It looked like water . . . about half a cup.” Torga and Robles were working
when De Luna slipped and fell and observed the area after she fell, but they both
denied seeing anything on the floor. The video recording does not show the area
clearly enough to see whether any substance was on the floor. Thus, the
uncontroverted evidence is that De Luna slipped and fell in water, not coffee.
We agree with Buc-ee’s that this testimony undermines De Luna’s argument
that the configuration of the coffee area—rather than the slippery substance on the
21 floor—was an unreasonably dangerous premises condition at the Buc-ee’s store. De
Luna’s argument relies on the premise that customers can spill coffee while walking
the six feet from the coffee dispensers to the condiment island with an open cup. But
if De Luna slipped in water, then the configuration of the coffee area is irrelevant to
her claim that the area posed an unreasonable risk of harm from customers spilling
coffee. In other words, De Luna could have just as likely slipped on water in any
part of the store, and the mere coincidence that the slip occurred in the coffee area
did not render the configuration of the coffee area unreasonably dangerous. De Luna
does not address this argument on appeal.
We conclude that the summary judgment evidence raised no more than a mere
surmise or suspicion that Buc-ee’s knew of an unreasonable risk of harm
accompanying customer usage of the coffee area. See King Ranch, 118 S.W.3d at
751. De Luna therefore did not meet her burden to raise a genuine issue of material
fact concerning whether Buc-ee’s knew or should have known that the configuration
of the coffee area was unreasonably dangerous. See TEX. R. CIV. P. 166a(i).
Accordingly, we hold that the trial court did not err by granting summary judgment
on this ground. We overrule De Luna’s first issue.
22 2. Whether Buc-ee’s had actual knowledge of the particular substance on the floor on which De Luna slipped and fell
In her second issue, De Luna argues that she presented more than a scintilla
of evidence showing that Buc-ee’s was aware that a substance was on the floor
before she slipped and fell in it.
As stated above, to establish a storeowner’s actual knowledge of a dangerous
premises condition, a plaintiff must produce evidence showing that the defendant
placed the substance on the floor or actually knew that the substance was on the floor
and negligently failed to remove it. Brookshire Bros., 438 S.W.3d at 15–16 (quoting
Reece, 81 S.W.3d at 814). De Luna does not contend that Buc-ee’s placed the
substance on the floor, but she does contend that a fact issue exists concerning
whether Buc-ee’s actually knew the water was on the floor and failed to clean it
before her slip and fall.
To support her arguments, De Luna relies on the video recording from the
store’s surveillance cameras and Robles’s deposition testimony. According to De
Luna, the video recording shows that within minutes of her fall, Robles was carrying
a cleaning tool and cleaned the area. De Luna argues that Robles testified he did not
carry cleaning tools during his quarterly-hour inspections of the coffee area but only
obtained the cleaning tool as necessary. Furthermore, De Luna argues that Robles
testified he did not know De Luna had fallen because the video recording shows he
did not speak to Torga prior to cleaning the area. De Luna thus contends that “a 23 reasonable inference from the facts presented is that Buc-ee’s knew about the spill,
went to get cleaning supplies to clean that spill and, in the interim, [De Luna] slipped
and fell on the spot of which Buc-ee’s was fully aware.” We disagree.
Our review of the video recording reveals that shortly after De Luna’s fall,
Robles walked from another part of the store toward the coffee area without a
cleaning tool. As Robles approached the coffee area, he briefly passed Torga near
where De Luna fell, but it is unclear from the video recording whether the two spoke
to each other. In any event, Robles walked past the area where De Luna fell and
continued through the coffee area to a door on the opposite end of the coffee area.
Robles entered the door emptyhanded and exited with a cleaning tool, went back to
the location where De Luna slipped and fell, and cleaned the area. At his deposition,
Robles could not recall whether Torga told him that De Luna had fallen before
Robles cleaned the floor. Robles denied seeing anything on the ground in the
location where De Luna fell and where he cleaned.
Neither the video recording nor Robles’s testimony provides a scintilla of
evidence that Robles was aware that any substance was on the ground when De Luna
slipped and fell. Contrary to De Luna’s characterization of the video, Robles did not
have a cleaning tool in his hand when he first encountered the area where De Luna
slipped and fell. Rather, he walked past the area where De Luna fell and then
retrieved the cleaning tool. At best, the video might indicate that Robles was aware
24 of a potential spill after De Luna slipped and fell in it. But nothing in the video
indicates that Robles saw a spill or knew about one before De Luna slipped and fell.
Moreover, at his deposition, Robles denied seeing any substance on the floor
where De Luna slipped and fell, although he did not recall the incident. He also
testified that he was cleaning the area pursuant to a general maintenance inspection.
When asked if he generally carried cleaning tools with him during his routine
inspections, Robles answered both “Yeah” and “No.” Thus, Robles’s testimony does
not support an inference that Robles must have known about the spill because he
already had a cleaning tool in his hand when he first encountered the location where
De Luna slipped and fell.
We therefore conclude that the appellate record contains no evidence from
which a jury reasonably could conclude that Buc-ee’s had actual knowledge of a
substance on the floor but negligently failed to clean it before De Luna slipped and
fell. See Brookshire Bros., 438 S.W.3d at 15–16. We hold that the trial court did not
err by granting Buc-ee’s no-evidence motion for summary judgment based on a lack
of evidence concerning the knowledge element of De Luna’s premises liability
claim. We overrule De Luna’s second issue.
25 Conclusion
We affirm the trial court’s judgment.
April L. Farris Justice
Panel consists of Justices Kelly, Goodman, and Farris.