Opinion issued July 15, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00773-CV ——————————— JUDY COWARD, Appellant V. H.E.B., INC., Appellee
On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2011-24693
MEMORANDUM OPINION
Judy Coward sued HEB Grocery Company to recover damages for injuries
she sustained when she slipped and fell on a puddle of water while shopping at the
grocery store. The trial court granted HEB’s motions for traditional and no-
evidence summary judgment. On appeal, Coward contends that the trial court erred in granting summary judgment to HEB because she had raised a genuine issue of
material fact that HEB had actual or constructive knowledge of a dangerous
condition on the premises. We affirm the trial court’s judgment.
Background
Coward was shopping at an HEB grocery store when she slipped and fell in
a puddle of water covering “a large area” of an aisle, injuring her back. According
to Coward, the water puddle was not deep, but was similar to “a recently mopped
floor.” After falling, Coward saw water trickling from the ceiling, hitting nearby
shelves and products, dripping onto the floor, and gradually forming a puddle. But
Coward “never saw any large quantity of water coming from the ceiling or water
pouring downward.”
In response to the accident, several store employees, including the store
manager, Mary Clark, came to Coward’s aid, and one employee called for a
maintenance person to mop the floor. Before the accident, Clark had been walking
another aisle, looking for overhead water leaks. According to Clark, the store had
previously experienced water leaks during heavy rains. Coward testified that there
were two bakery shop employees working approximately nine steps from the main
aisle, near the end of the aisle where she fell. But neither Clark nor any other HEB
employee testified that they saw water in the aisle before Coward fell. Store reports
reveal that in the two years before Coward’s accident the store had suffered roof
2 leaks. However, none of the reports specifically identified leaks in the area of the
store where Coward slipped and fell.
HEB filed a motion for no-evidence and traditional summary judgment,
arguing that Coward could produce no evidence that HEB knew or should have
known that there was water on the floor and that Coward had legally insufficient
evidence to support her claims. In support of the motion, HEB attached a transcript
of Coward’s deposition testimony. Coward responded, arguing that her own
affidavit testimony and store manager Clark’s testimony presented sufficient
evidence that HEB had knowledge of the dangerous condition. Specifically,
Coward argued that (1) the prior leaks put the store manager on notice that the
ceiling was likely to leak and (2) the length of time that the water was on the floor
supported the store’s constructive knowledge of that leak.
The trial court granted summary judgment to HEB. Coward filed a motion
for new trial, which was overruled by operation of law. This appeal followed.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without
specifying the grounds for doing so, as is the case here, we must uphold the trial
court’s judgment if any of the grounds relied on by the movant is meritorious.
Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—
3 Houston [1st Dist.] 2011, pet. denied). When reviewing a summary judgment
motion, we take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request
under the traditional, as-a-matter-of-law standard. Binur v. Jacobo, 135 S.W.3d
646, 650 (Tex. 2004). If a motion argues both bases for summary judgment and the
order does not specify which motion was granted, we typically review the
propriety of the summary judgment under the no-evidence standard first. See
Parker, 365 S.W.3d at 65. If the no-evidence summary judgment was properly
granted, we need not reach arguments on the traditional motion for summary
judgment. See id.
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). On review, we determine whether
the nonmovant produced more than a scintilla of probative evidence to raise a
genuine issue of material fact for each challenged element. Colson v. Grohman, 24
4 S.W.3d 414, 420 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). More than a
scintilla of evidence exists if the evidence offered “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S.
1030, 124 S. Ct. 2097 (2004).
Objections to Evidence
We first address HEB’s contention that Coward’s affidavit was insufficient
to raise a genuine issue of material fact because it was based on her “opinions,
speculations and conclusions about the source, formation, and longevity of the
water” on the floor. Coward responds that there is no speculation in her affidavit,
that it does not contain any factual or legal conclusions, and that HEB waived any
error by failing to raise these objections in the trial court.
Texas Rule of Civil Procedure 166a(f) requires an affidavit to show that it is
made by a person who is competent to testify on the matter. TEX. R. CIV. P.
166a(f); Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex. App.—Houston [1st
Dist.] 1997, no pet.). Texas law divides defects in summary judgment affidavits
into two categories: (1) defects in form and (2) defects in structure. For the first
category, defects in form, the complaining party must make an objection in the trial
court and obtain a ruling at or before the summary judgment hearing. See TEX. R.
APP. P. 33.1(a)(1); TEX. R. CIV. P. 166a(f); Vice v. Kasprzak, 318 S.W.3d 1, 11
5 (Tex. App.—Houston [1st Dist.] 2009, pet denied). When a trial court does not
explicitly rule on an objection to the form of summary judgment evidence, its
“ruling on an objection to summary-judgment evidence is not implicit in its ruling
on the motion for summary judgment.” Delfino v. Perry Homes, 223 S.W.3d 32, 35
(Tex. App.—Houston [1st Dist.] 2006, no pet.). For the second category, defects in
substance, the complaining party may raise the issue for the first time on appeal.
See Dodge v. Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). Objections that statements in an affidavit are conclusory are defects of
substance and, therefore, may be raised for the first time on appeal. Id.; see
Rizkallah, 952 S.W.3d at 587.
An affidavit is conclusory if it states “a conclusion without any explanation”
or asks the factfinder to “take [the affiant’s] word for it.” Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008);
see Rizkallah, 952 S.W.2d at 587 (“A conclusory statement is one that does not
provide the underlying facts to support the conclusion.”). If Coward’s affidavit
contained conclusory statements—statements that failed to provide the underlying
facts to support the conclusion—it was not proper summary judgment evidence.
See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied).
6 In reply to Coward’s response to its motion for summary judgment, HEB
argued that the following statements were conclusory: (1) “the leaks were steady in
places described above, slower off the plastic lip of the shelf;” (2) “[w]ater was
dripping from that general area;” and (3) “I fell on aisle 4, approximately 9 steps
from the main aisle, and 17 steps from the bakery.” Each of these statements was
supported by factual statements within the affidavit and was within the scope of
Coward’s personal knowledge. See Rizkallah, 952 S.W.2d at 586; Miller v.
Raytheon Aircraft Co., 229 S.W.3d 358, 365–66 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (“The personal knowledge requirement is satisfied if the affidavit
sufficiently describes the relationship between the affiant and the case so that it
may be reasonably assumed that the affiant has personal knowledge of the facts
stated in the affidavit.”).
Accordingly, we conclude that Coward’s statements were competent
summary judgment evidence. We next consider whether that and other evidence
raised a fact issue to foreclose summary judgment.
Premises Liability
Coward contends that the trial court erred in granting summary judgment to
HEB because she raised a fact issue regarding whether HEB had actual or
constructive knowledge of the alleged puddle on its floor.
7 Coward was HEB’s invitee. Accordingly, HEB owed her a duty to exercise
reasonable care to protect her from dangerous conditions that were either known or
reasonably discoverable. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998); Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—
Houston [1st Dist.] 2005, no pet.). To recover from HEB, Coward had the burden
of proving that: (1) HEB had actual or constructive knowledge of some condition
on the premises; (2) the condition caused an unreasonable risk of harm; (3) HEB
did not exercise reasonable care to reduce or eliminate the risk; and (4) HEB’s
failure to use such care proximately caused her injuries. See Ketch v. Kroger Co.,
845 S.W.2d 262, 264 (Tex. 1992); Bendigo, 178 S.W.3d at 114. A plaintiff may
satisfy the knowledge element by proving one of three things: (1) the defendant
placed a substance on the floor; (2) the defendant actually knew the substance was
on the floor; or (3) it is more likely than not that the dangerous condition had
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);
Bendigo, 178 S.W.3d at 114.
Coward contends that the evidence shows that HEB had both actual and
constructive knowledge of a dangerous condition. We first consider whether
Coward presented more than a scintilla of evidence that HEB had actual
knowledge.
8 A. Whether HEB had actual knowledge of a dangerous condition
Coward cites City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex.
1996), to support her contention that HEB had actual knowledge of the dangerous
condition because the manager knew that the roof leaked during heavy rain. In
Rodriguez, the Texas Supreme Court reversed the court of appeals’s determination
that a jury could have concluded that a leaky roof in a city recreation center was
itself a dangerous condition and, therefore, the defendant’s knowledge was
conclusive. Id. at 536–37. The Court concluded that a leaky roof was not a
dangerous condition, but a leaky roof could cause a dangerous condition, such as
water on the floor. Id.
Following Rodriguez, knowledge of rain causing prior roof leaks is not
equivalent to actual knowledge of a dangerous condition. To the contrary, the
Court reasoned that whether knowledge could be inferred, “[d]epend[ed] on the
position of the leaks above the floor and the amount of rain.” Id. at 537. Coward
cites to store manager Clark’s testimony that she knew that it was raining, that the
store roof had prior leaks when it rained, and that she was looking for leaks when
Coward fell. Coward argued that their testimony established actual knowledge of a
dangerous condition. However, this evidence does not demonstrate that HEB
actually knew that there was a dangerous condition on the aisle where Coward fell.
9 See id. at 536 (holding leaky roof not dangerous condition itself); see also Reece,
81 S.W.3d at 814.
Accordingly, we conclude that there was no evidence to support the
conclusion that HEB had actual knowledge of a dangerous condition.
1. Whether HEB had constructive knowledge of a dangerous condition
We next consider whether Coward presented more than a scintilla of
evidence that the water had been on the floor for a sufficient period of time that
HEB had a reasonable opportunity to discover it. See Reece, 81 S.W.3d at 814;
Bendigo, 178 S.W.3d at 114. In determining whether to attribute constructive
knowledge, courts analyze the combination of proximity, conspicuity, and
longevity of the dangerous condition. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d
566, 567–68 (Tex. 2006) (citing Reece, 81 S.W.3d at 816).
Temporal evidence, the length of time that the dangerous condition existed,
provides the best indication of whether the store had a reasonable opportunity to
discover a dangerous condition. Reece, 81 S.W.3d at 816. “An employee’s
proximity to a hazard, with no evidence indicating how long the hazard was there,
merely indicates that it was possible for the premises owner to discover the
condition, not that the premises owner reasonably should have discovered it.” Id.
Temporal evidence is necessary for the fact-finder to conclude that the store owner
had an opportunity to discover the dangerous condition. Id.
10 Evidence of a dangerous condition’s conspicuousness and the proximity of
the property owner or its employees to the condition is relevant. Reece, 81 S.W.3d
at 815–16. An inconspicuous spill would require close proximity to impose
constructive knowledge. Id. (noting conspicuity could be determined based on
evidence that there was “a dark liquid on a light floor”). However, evidence of
close proximity and conspicuousness of a condition are insufficient, alone, to prove
constructive knowledge; temporal evidence “of how long the hazard was there” is
required. Id.
In her affidavit, Coward stated that after her fall, she saw “water dripping
from the ceiling,” “striking the floor, nearby shelves and products, and water from
the shelves and products dripped onto the floor.” She also noted that the ceiling
leaks were “steady as were the leaks from the products, but slower and more
deliberate as [they] trickled down the plastic brackets of the shelves and on to the
floor.” According to Coward, the water on the floor appeared like a recently
mopped floor—not a big puddle.
Coward cites Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 668 (Tex.
App.—Texarkana 1999, pet. denied), to support her contention that the water was
on the floor long enough for HEB to have discovered it. In Tinsley, the grocery
store defendant had constructive knowledge of a dangerous condition when there
was evidence that water slowly dripped from a dingy ceiling tile and formed a
11 large puddle and that the courtesy counter was near the puddle. Id. at 669. The
court held that the plaintiff’s testimony that she noticed “big circles and yellow
stains” on ceiling tiles above her, some portion of the ceiling tiles appeared
“darker, as if the tiles had recently been wet,” and a store employee’s testimony
that when water would leak through the tiles, the water would “gather on the floor
until someone discovered it” was sufficient to raise a fact issue about whether the
dangerous condition “existed long enough to give” the grocery store a reasonable
opportunity to discover the condition. Id. at 668–69.
Coward presented no evidence that would suggest that there had been prior
leaks in the same area of the store where she fell. The evidence she presented
indicated that the prior leaks were located in different parts of the store and were
not always the result of rain. As examples, there were leaks involving a roof air
conditioning unit leaking fluid, a window air conditioning unit leaking fluid,
“ponding” on the roof, a skylight leaking, and the roof leaking in the front of the
store. Furthermore, knowledge that it was raining and that rain could have caused
leaks is not evidence of a dangerous condition; instead, it is evidence of the
possibility of a dangerous condition. See Rodriguez, 931 S.W.2d at 536–37
(holding that “leaky roof was not itself a dangerous condition”). Such knowledge is
not evidence of constructive knowledge absent any evidence of knowledge of prior
rain leaks in the part of the store where Coward fell.
12 Coward cites Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679
(Tex. App.—Waco 2004, pet. denied), to argue that HEB had constructive
knowledge because of the time it would take for the puddle to form on the store
floor. In Kofahl, there was more than scintilla of evidence that the store had
constructive knowledge based on testimony that the puddle was “large,” with “very
tacky and gummy” edges, as though the puddle had “start[ed] to dry up.” Id. at 681
(citing Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16–17 (Tex. App.—
Dallas 1977, no writ) (attributing constructive knowledge when substance on floor
was described as “dried where it looks like cake”); Furr’s, Inc. v. McCaslin, 335
S.W.2d 284, 286–87 (Tex. App.—El Paso 1960, no writ) (attributing constructive
knowledge based on evidence that substance on floor was described as “dry around
the edges”); Furr’s v. Bolton, 333 S.W.2d 688, 689–90 (Tex. App.—El Paso 1960,
no writ) (attributing constructive knowledge based on evidence that substance on
floor was “mashed and turned dark” and “had dried some around the edges”)).
Coward, however, presented no similar evidence of dirt, track marks, or
gummy surfaces that would indicate that the puddle in which she fell had “start[ed]
to dry up” or otherwise indicate the water had been on the floor long enough to
raise an issue of constructive knowledge. See Kofahl, 151 S.W.3d at 681; cf.
Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534, 537, 539 (Tex. App.—Tyler
1980, writ ref’d n.r.e.) (holding no constructive knowledge based on plaintiff
13 testimony that liquid was “brown” or dirty). At best, the evidence presented
supports the possibility of a dangerous condition, rather than a dangerous condition
itself. See Gonzalez, 968 S.W.2d at 936 (holding evidence of footprints and
trackmarks in “fresh” substance on floor could “no more support the inference that
[spill] accumulated dirt over a long period of time than it can support the opposite
inference”).
Lastly, Coward argues that HEB employees’ close proximity to the
dangerous condition supports the conclusion that HEB had constructive
knowledge. Specifically, Coward testified that two bakery workers were just steps
from the main aisle, near the end of aisle on which she fell. In Wal-Mart Stores,
Inc. v. Spates, the Texas Supreme Court held that the store defendant did not have
constructive knowledge of a dangerous condition based on evidence that a store
employee was “directly behind” her when the plaintiff slipped and fell on an empty
six-pack ring. 186 S.W.3d at 567–68. Despite the employee’s proximity, the store
did not have constructive knowledge because the only temporal evidence was the
plaintiff’s testimony that the ring had been on the floor for 30 to 45 seconds. Id. at
568.
Coward, likewise, fails to offer any temporal evidence to raise an issue of
constructive knowledge based on this proximity. There is no evidence that the
bakery employees were aware of or could have observed the condition about which
14 she complains. Furthermore, the only employee who testified to having walked the
aisle before Coward’s fall testified that she had seen no water on the floor 20
minutes before Coward’s accident. Accordingly, Coward failed to present any
evidence that the puddle was present long enough to allow the employees’ close
proximity to raise an issue of HEB’s constructive knowledge of a dangerous
condition. See Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 656 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) (holding no constructive knowledge
because plaintiff failed to present temporal evidence and relied on argument that
employees were “present in the store, and should have been aware of the
dangerous condition”).
Without any knowledge of how long the water was on the floor, we
conclude that there was no evidence of one of the essential elements of Coward’s
claim. Accordingly, we conclude that the trial court did not err in granting
summary judgment to HEB. 1
Conclusion
We affirm.
1 Because we conclude that the trial court properly granted HEB no-evidence summary judgment, we do not reach Coward’s arguments regarding traditional summary judgment. See Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
15 Harvey Brown Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.