NUMBER 13-09-00250-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARY I. LUNA, Appellant,
v.
STRIPES LLC, Appellee.
On appeal from County Court at Law No. 3
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
This appeal arises from an alleged slip-and-fall incident at a convenience store
located in Robstown, Texas. Appellant Mary Luna appeals a summary judgment granted
in favor of appellee Stripes LLC ("Stripes") on a premises liability claim. By two issues,
Luna contends that the trial court erred in granting summary judgment because Luna
raised a fact issue as to whether: (1) Stripes had constructive notice of melted ice on its
floor; and (2) a beer display presented an unreasonably high risk of injury. We affirm.
I. Factual and Procedural Background
On September 15, 2006, at around 7:50 p.m., Mary Luna entered a Stripes
convenience store at 100 W. Avenue J in Robstown, Texas. Luna proceeded to the rear
of the store, picked out a single bottle of Sprite from a merchandise display, and
immediately proceeded to the cash register. As Luna approached the sales counter, she
slipped, fell, and landed in a seated position. A store employee filled out an incident report
because Luna stated that she had injured her right arm and, as a result, could not fill out
the form herself.
On September 17, 2007, Luna filed a negligence lawsuit based upon a premises
liability claim. On October 6, 2008, following discovery, Stripes filed a combined no-evidence and traditional motion for summary judgment. (1) Luna timely responded on
October 24, 2008, attaching evidence to her response. On February 5, 2009, without
specifying the grounds for its ruling, the trial court granted Stripes's motion for summary
judgment. This appeal followed.
II. Standard of Review and Applicable Law
Stripes's motion for summary judgment was a combined "traditional" and "no-evidence" motion. See Tex. R. Civ. P. 166a(c), (i). When a party moves for summary
judgment under both rules 166a(c) and 166a(i), "[we] first review the trial court's summary
judgment under the standards of rule 166a(i)." Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004).
A. No-Evidence Summary Judgment
Because a no-evidence summary judgment is essentially a pre-trial directed verdict,
we utilize the legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 750-51 (Tex. 2003). Therefore, evidence is reviewed in the light most
favorable to the non-movant, "disregarding all contrary evidence and inferences." Id. at
751. "'A no evidence point will be sustained when (a) there is a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact.'" Id. (quoting Merrell Dow Pharms. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)).
Under rule 166a(i), the burden is on the non-movant-here, Luna-to produce
summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P.
166a(i). To defeat a motion for no-evidence summary judgment, the non-movant need
only produce evidence that raises a fact issue on the challenged elements; the non-movant
is not required to marshal its proof. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002). Thus, a no-evidence summary judgment is improper if the non-movant raises
a genuine issue of material fact by producing more than a scintilla of summary judgment
evidence. King Ranch, Inc., 118 S.W.3d at 751; Ridgway, 135 S.W.3d at 600; see Moore
v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). More
than a scintilla of evidence exists when the evidence would enable "'reasonable and fair-minded people to differ in their conclusions.'" Haggar Clothing Co. v. Hernandez, 164
S.W.3d 386, 388 (Tex. 2005) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.
1994)). Less than a scintilla of evidence exists when the evidence does nothing more than
"create a mere surmise or suspicion" of fact. King Ranch, Inc., 118 S.W.3d at 751. If the
non-movant fails to produce more than a scintilla of evidence as to a genuine issue of
material fact, then there is no need to analyze whether her proof satisfied Rule 166a(c).
Ridgway, 135 S.W.3d at 600.
B. Traditional Summary Judgment
We review a traditional motion for summary judgment de novo. Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Branton v. Wood,
100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.). The evidence is reviewed
in the light most favorable to the non-movant, and the moving party bears the burden of
proof in showing that there is no genuine issue of material fact and that he is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); see Fielding, 289 S.W.3d at 848;
Branton, 100 S.W.3d at 646. In determining whether a genuine issue of material fact
exists, "evidence favorable to the non-movant will be taken as true, and all reasonable
inferences made and all doubts resolved in the non-movant's favor." Branton, 100 S.W.3d
at 646 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). When
reviewing a summary judgment, we must consider whether reasonable and fair-minded
jurors could differ in their conclusions in light of all of the evidence presented. Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). If the movant can disprove
at least one element of the plaintiff's claim, summary judgment is proper. Branton, 100
S.W.3d at 646.
C. Premises Liability
Luna entered the Stripes location in Robstown as an invitee of the store. An invitee
is someone who enters upon another's land, with the knowledge of the owner, and for the
mutual benefit of both parties. Motel 6 G.P. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (citing
Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975)). As its invitee, Stripes
owed Luna "a duty to exercise reasonable care to protect her from dangerous conditions
in the store that were known or reasonably discoverable . . . ." Wal-Mart Stores v. Reece,
81 S.W.3d 812, 814 (Tex. 2002). Although a duty to exercise reasonable care existed,
Stripes was not an insurer of Luna's safety. Id.
In a slip-and-fall case, the plaintiff must plead and prove four elements: (1) the
premises owner had actual or constructive knowledge of some condition on the premises;
(2) the condition posed an unreasonable risk of harm; (3) the premises owner did not
exercise reasonable care to reduce or to eliminate the risk; and (4) the premises owner's
failure to use such care was the proximate cause of the plaintiff's injury. Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). A premises owner-here, Stripes-has
constructive knowledge of a condition when: "(1) the defendant places the 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 condition existed long enough to give the premises owner a
reasonable opportunity to discover it." Wal-Mart Stores, 81 S.W.3d at 814. The proximate
cause element of premises liability comprises of two components: cause-in-fact and
foreseeability. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The test for
cause-in-fact, or "but for" causation, is two-fold: (1) whether the act or omission was a
substantial factor in causing the injury; and (2) without the act or omission, the harm would
not have occurred. Id. A finding of cause-in-fact may not be based upon "mere conjecture,
guess or explanation"; rather, it must be based on either direct or circumstantial evidence.
Id.
III. Analysis In its motion for summary judgment, Stripes asserted: (1) Luna possessed no
evidence demonstrating a condition existed upon the premises which posed an
unreasonable risk of harm to her; (2) Luna possessed no evidence that Stripes failed to
exercise reasonable or ordinary care to reduce or eliminate the specific risk made the basis
of the lawsuit; and (3) Luna possessed no evidence to show Stripes's alleged failure to use
or exercise reasonable care to reduce or eliminate the specific risk at issue proximately
caused Luna's injuries. Luna's response to the motion for summary judgment contained
arguments, supported by authority, for the first two grounds asserted by Stripes. Luna
briefly discussed proximate cause in her response to the motion but did not support it with
any authority or citations to evidence. Nonetheless, because Luna responded to the
proximate cause ground in her reply to the motion for summary judgment, we conclude the
issue was properly preserved for appeal. See Tex. R. App. P. 33.1.
By two issues, Luna contends that the trial court erred in granting summary
judgment because Luna raised fact issues as to: (1) whether Stripes had constructive
notice of melted ice on its floor; and (2) whether a beer display presented an unreasonably
high risk of injury. However, in her appellate brief, Luna does not address the issue of
proximate cause, a ground raised in Stripes's no-evidence motion for summary judgment.
Here, the order for summary judgment did not specify the grounds on which it was
granted, and we must affirm a trial court's order granting summary judgment if any of the
summary judgment grounds are meritorious. See Progressive County Mut. Ins. Co. v.
Kelley, 284 S.W.3d 805, 806 (Tex. 2009). Because the grounds for which the order was
granted were not specified, Luna is required to defeat all grounds on which the motion was
filed. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Given that Luna failed to
attack each independent ground listed in Stripes's motion for summary judgment, she
cannot prevail on appeal. Stripes asserted that Luna possessed no evidence to show
Stripes's alleged failure to use or exercise reasonable care to reduce or eliminate the
specific risk at issue proximately caused Luna's injuries, and Luna wholly fails to address
this ground in her brief. We therefore conclude that the trial court did not err by granting
summary judgment to Stripes on this basis. Luna's issues are therefore overruled. IV. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
15th day of July, 2010.
1. Stripes alleged the following grounds for summary judgment: (1) Luna possessed no evidence
demonstrating a condition existed upon the premises which posed an unreasonable risk of harm to her; (2)
Luna possessed no evidence that Stripes failed to exercise reasonable or ordinary care to reduce or eliminate
the specific risk made the basis of the lawsuit; and (3) Luna possessed no evidence to show Stripes's alleged
failure to use or exercise reasonable care to reduce or eliminate the specific risk at issue proximately caused
Luna's injuries. As evidence, Stripes attached portions of Luna's deposition as well as portions of the
deposition of Tammy Schanen, one of the store's employees on duty at the time of the incident.
On January 7, 2009, Stripes filed an amended original answer generally denying all allegations in
Luna's second and third amended petitions. Stripes also specifically denied possessing constructive
knowledge of any purportedly dangerous condition on the premises and that if any condition did exist it did
not pose an unreasonable risk of harm. Stripes further denied failing to exercise reasonable care and
proximately causing Luna's injuries.