Nelda Sanchez v. Krogers, Inc.

• Court: Court of Appeals of Texas
• Decided: May 13, 2004
• Docket: 14-03-00053-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 13, 2004

Affirmed and Memorandum Opinion filed May 13, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00053-CV

NELDA SANCHEZ, Appellant

V.

KROGERS, INC., Appellee

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On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 100,170

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M E M O R A N D U M   O P I N I O N

In this slip-and-fall case, Nelda Sanchez appeals a no-evidence summary judgment entered in favor of Krogers, Inc. (AKrogers@) on the ground that she produced sufficient evidence to raise a fact issue whether Krogers had actual or constructive knowledge of the substance on the floor that caused her to fall.  We affirm.

Sanchez filed a premises liability action against Krogers for injuries she allegedly suffered from falling in a Krogers supermarket.  Krogers filed a no-evidence motion for summary judgment (the Amotion@), contending that there was no evidence Krogers had actual or constructive knowledge of the allegedly dangerous condition that caused Sanchez to fall.  The trial court granted the motion.

A no‑evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements.  See Tex. R. Civ. P. 166a(i).  In reviewing a no‑evidence summary judgment, we review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences, to determine whether more than a scintilla of probative evidence was presented on the challenged elements of the nonmovant=s claim.  See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (2003).

To prevail on a premise liability claim, a plaintiff must prove, among other things, actual or constructive knowledge by the owner or occupier of a condition on the premises that posed an unreasonable risk of harm.  CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).  In a slip‑and‑fall case, this knowledge element can be established if the plaintiff shows either that: (1) the defendant put the foreign substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) it is more likely than not the condition existed long enough to give the defendant a reasonable opportunity to discover it.  Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

To raise a fact issue on the knowledge element in this case, Sanchez=s summary judgment response relied solely on her supplemental interrogatory answer, identifying witnesses allegedly having knowledge of the facts necessary to prove her case.  However, a party may not rely on her own answer to an interrogatory as summary judgment evidence.  Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2002).  In addition, Sanchez was not a competent witness to testify about the knowledge possessed by other witnesses.^[1]  Therefore, Sanchez=s summary judgment response failed to provide any evidence to raise a fact issue concerning Krogers=s knowledge of the allegedly dangerous condition.

Sanchez also contends that the trial court erred in denying her post-judgment motion to reconsider because the affidavits attached to it contained sufficient evidence to raise a fact issue regarding Krogers=s knowledge.  However, fact issues that are not raised by summary judgment evidence set forth in a summary judgment motion or response filed before judgment is entered may not be considered as grounds for reversal on appeal.^[2]  Therefore, evidence contained in the affidavits attached to Sanchez=s motion for reconsideration are not a proper basis to reverse the summary judgment.

Because Sanchez=s issues thus fail to demonstrate that she provided timely and proper summary judgment evidence responsive to Krogers=s no-evidence motion for summary judgment, they are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 13, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

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^[1]           See Tex. R. Evid. 602 (A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that the witness has personal knowledge of the matter);  Tex. Div.-Tranter, Inc. v. Carroza, 876 S.W.2d 312, 314 (Tex. 1994) (holding that terminated employee=s affidavit, stating his belief that he and other employees had been terminated because they filed worker=s compensation claims against the employer, was conclusory for failing to state a basis for this knowledge and thus not competent summary judgment evidence to raise a fact issue on retaliatory motive).

^[2]           See Tex. R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); Hussong v. Schwan=s Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex. App.CHouston [1st Dist.] 1995, no writ);  Leinen v. Buffington=s Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.CHouston [14th Dist.] 1992, no writ).