Rodenberg, Jerold v. Grandte Park III, LTD and Granite Properties

• Court: Court of Appeals of Texas
• Decided: December 12, 2012
• Docket: 05-11-01476-CV
• Status: Published

Opinion

AFFI RM; Opinion issued 1)cceni her 12, 2012

In The nitrt nf App1a1!i .Fiftii iitrirt uf ixw at Oattwi No. 05-11-01 476-CV

JEROLD RODEN13ERG, Appellant

V.

GRANITE PARK lii, LTD. AND GRANITE PROPERTIES, INC., Appellees

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-04988-2009

MEMORANDUM OPINION Beibre Justices Morris. Francis, and Murphy Opinion By Justice Francis

Jerold Rodenberg appeals the trial court’s summary judgment in favor of Granite Park III,

Ltd. and Granite Properties, Inc. In two issues, Rodenherg claims the trial court erred in granting

summaryjudgment in his premises liability case because appellees retained control over the premises

and had notice of a dangerous condition. We affirm.

Rodenberg, a security guard at a building owned by Granite Park III and managed by Granite

Properties. slipped and fell in wet cement while patrolling the tenth floor ofthe building .At the time

of Rodenberg’s fall, the ninth and tenth floors of the building were being renovated for a tenant, and

the tenth floor had been under construction for at least two weeks before the incident. The general

contractor on the project subcontracted the tile and cement work to Legacy Tile & Marble Design vho had poured the cement.

Rodenherg sued appellees and I egacv Tile Appellees filed a traditional and no evidence .

motion lbr summary judgment. In the motion. they alleged they did not control the tenth floor olthc

building during the construction, nor did they create the condition or have actual or constructive

knowledge of the condition Alternatively. appellees asserted Rodenberg had no evidence (1)

appellees possessed or controlled the tenth floor at the time of Rodenberg’s fall, (2) appellees created

the alleged condition. (3) appellees had actual knowledge of the alleged condition. or (4) the

condition existed for such a period of time that appellees should have known of the alleged

condition. After the trial court granted the motion without specifying the grounds, Legacy Tile was

dismissed from the case based on a settlement agreement.

Because appellees presented both no evidence and traditional grounds, we first address the

challenges to appellees no evidence summary judgment motion. See Ford Motor Co. i’. Ridgwav.

135 S,W.3d 598, 600 (Tex. 2004); Preston Gale, LP v. Bukaiv. 248 S.W.3d 892, 895 (Tex.

App.—Dallas 2008, no pet.). A party may move for summary judgment on the ground there is no

evidence of one or more essential elements of a claim or defense on which an adverse party would

have the burden of proof at trial. LMB, LId. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per

curiam). Unless the respondent produces summary judgment evidence raising a genuine issue of

material 1ct, the court must grant the motion. TEx. R. Civ. P. 166a(i); Johnson v. Brewer &

Priichard, P.C.. 73 S.W.3d 193, 207 (Tex. 2002).

To succeed in a traditional motion for summary judgment, the movant must establish there

are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. W

investments, inc. i’. Urena. 162 S.W.3d 547. 550 (Tex. 2005). In reviewing a summary judgment,

we consider the evidence in the light most favorable to the nonmovant and resolve any doubt in the nomnovant’s favor. i/Lyon v. Mr. Properly Mgini. Cv.. 690 S.W.2d 546. 548—49 (fex. 1985).

Where, as here, the trial court’s order granting summary judgment does not specify the basis for the

ruling, we must affirm the trial court’sjudgment ifany ofthe theories advanced are meritorious. IV

investments, inc., 162 S.W.3d at 550.

When a plaintiff is injured as a result of a condition existing on a premises and not as the

result ofa contemporaneous activity, the plaintiff may pursue only a claim for premises liability. See

H.E. Bull Grocery Ca v. Warner. 845 S.W.2d 258, 259 (Tex. 1992). To prevail on a premises

liability suit a plaintiff classified as an invite must prove: (1) a condition on the premises posed

an unreasonable risk of harm; (2) the premises owner had actual or constructive knowledge ofthe

danger: (3) the premises owner did not exercise reasonable care to reduce or eliminate the rislc and

(4) the premises owner’s failure to use such care proximately caused the plaintiff’s injuries. See

LMB. Ltd. 201 S.W.3d at 688. A slip-and-fall plaintiff satisfies the knowledge element by

establishing (1) the defendants placed the substance on the floor, (2) the defendants 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-Marl Slores, Inc. v. Reece.

81 S.W.3d 812,814 (rex. 2002).

In their motion. appellees assert there is no evidence (I) they placed the wet cement on the

floor the night of Rodenberg’s fall, (2) they were aware ofthe placement or presence ofwet cement

or (3)the condition existed for such a period of time that they should have known ofthe condition.

In response. Rodenberg does not argue appellees had actual knowledge but claims they had

constructive knowledge. Rodenberg does not cite, in his response to the motion for summary

judgment or in his appellate brief, where in the record evidence exists showing appellees knew or

should have known ofthe wet cement Nor does he point us to where in the record evidence exists

—3— raising a tact issue on kno\\ ledge. Rather, he argued. in his response to the suntmarv judgment

motion. appellees had constructive knowledge because “reasonable diligence on the part of

I appellees v. ould have provided them with notice of the cement work to he done on the 1 0th floor. In his appellate brief. Rodenberg argues the inlormation in the guard’s log before his shifl said only

“construction” and “[h lad more precise information been obtained from the general contractor.

it could’ve been recorded in the iuard Log for Appellant’s review when he went on ditty that

day.” This is not evidence of actual or constructive knowledge.

Our independent review of the summary judgment record reveals no evidence showing

appellees placed the wet cement on the tenth floor. appellees actually knew the wet cement was on

the floor, or it is more likely than not the wet cement was in place long enough to give appellees a

reasonable opportunity to discover it. See 1J’ul—liar/ Stores, Inc., SI S.W.3d at 814. In fact.

appellees presented evidence in support of their traditional motion for summary judgment showing

they “did not retain or exercise any control over the details of the work” performed by the general

contractor or subcontractors and did not place, cause to be placed. and were “not aware of the

placement or presence of wet cement in the elevator lobby on the 10th floor” on the night of

Rodenberg’s fail. Because Rodenberg did not present evidence challenging this evidence or raising

a fact issue, we cannot conclude the trial court erred in granting appellecs’ motion for summary

judgment. We overrule Rodenberg’ s issues.

We affirm the trial courts judgment.

p

vk)LLY FRANCIS JUSTICE U’

I 11476F.P05 uiirt nf \pprth Viftti t)h;trict nf rxa at Oat1a

JUDGMENT JEROI I) ROI)I NBl ERG. Appellant Appeal from the 99th Judicial District Court otCollin County. Texas. (Tr.Ct.No. No. 05-1 i-01476-CV V. 199-04988-2009). Opinion delivered by Justice Francis. GRANITE PARK III. LID. AND Justices Morris and Murphy participating. UR F T l’E PROPERTIES, INC.. Appellees

in accordance with this Court’s opinion of this date. we AFFIRM the trial court’s judgment. We ORI)ER that Granite Park Ill. Ltd. and Granite Properties. Inc. recover their costs of this appeal from .ierold Rodenberg.

Judgment entered I)ecember 12. 2012.

MOLLY FRACIS JUSTICE