Smith v. Mohawk Mills, Inc.

260 S.W.3d 672, 2008 Tex. App. LEXIS 5633, 2008 WL 2896622
CourtCourt of Appeals of Texas
DecidedJuly 29, 2008
Docket05-07-00989-CV
StatusPublished
Cited by10 cases

This text of 260 S.W.3d 672 (Smith v. Mohawk Mills, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Mohawk Mills, Inc., 260 S.W.3d 672, 2008 Tex. App. LEXIS 5633, 2008 WL 2896622 (Tex. Ct. App. 2008).

Opinion

OPINION

Opinion by

Justice FRANCIS.

Teddy James Smith and Sandra Smith appeal the trial court’s “no evidence” summary judgment in favor of Mohawk Mills, Inc. In their sole issue, appellants contend they produced sufficient summary judgment evidence to create a material issue of fact that appellee created an unreasonably dangerous condition on its property proximately causing their injuries. We affirm.

Appellant Teddy James Smith (“Smith”) was seriously injured when he fell through an open loading dock door at appellee’s warehouse facility. No one witnessed the accident. One worker heard Smith talking on the telephone close to the door, heard the sound of something falling, and saw the safety chain in front of the door snap. Because he suffered a brain injury that damaged his memory, Smith cannot remember what happened.

Appellants sued appellee for premises liability and negligent activity. Appellants alleged that a forklift operator struck Smith from behind and knocked him out the door. Appellants further alleged that a chain stretched across the door opening was an unreasonably dangerous condition because it was not strong enough to restrain someone from falling through the open dock door.

After discovery, appellee moved for summary judgment on the ground there *674 was “no evidence” to support appellants’ claim of premises liability. Appellee’s motion did not mention appellants’ negligent activity claim directly, but it asserted the law limited appellants to their premises liability claim. Although appellants defended their negligent activity claim in the trial court, they do not raise a complaint on appeal about the trial court’s award of summary judgment on it, and thus any potential error is waived. See Tex.R.App. P. 38.1(e); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990) (per curiam). Regarding the premises liability claim, appellee challenged the evi-dentiary support for three elements of appellants’ claim. The trial court granted summary judgment without specifying which elements lacked evidentiary support.

When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of the plaintiffs claims, the plaintiff must present enough evidence to raise a genuine issue of material fact on the challenged element. Tex.R. Civ. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.2006) (per curiam). Appellee owed appellant, an invitee on the premises, a duty to exercise reasonable care to protect him from dangerous conditions of which it had actual or constructive knowledge. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex.2006). To prove a claim of premises liability, appellants must show (1) that appellee had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) appellee did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) appellee’s failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused appellants’ injuries. See LMB, 201 S.W.3d at 688.

Appellee’s motion for summary judgment asserted no evidence was presented to prove: (1) the chain stretched across the dock opening posed an unreasonable risk of harm, (2) appellee had actual or constructive notice of a dangerous condition, and (3) appellee proximately caused appellants’ injuries. Appellants’ response included affidavits and deposition excerpts from warehouse employees and visitors. Appellants’ evidence was Smith worked for a trucking company and made deliveries to appellee’s warehouse. The warehouse has dock doors about four feet off the ground. When a particular dock is unoccupied, ap-pellee would block off the entry with safety cones, but leave the door up to provide ventilation. Shortly before the accident, Donny Spears, the warehouse safety specialist, decided to replace the safety cones with chains. He instructed Roman Gonzalez, the maintenance supervisor, to purchase chains, but he offered no detailed specifications for the chains other than that they be painted yellow and be “thick enough where it won’t bust.” Gonzalez purchased and installed chains and clasps, but he was unaware of the size, strength, or brand of the chains he bought.

The witnesses generally agreed that the chains were lightweight and unable to support a person’s weight or prevent a fall from the dock. Spears and two of appel-lee’s forklift drivers testified the chains were intended to warn people about the open dock. Johnny George, a truck driver for Smith’s company, averred the chains created an unreasonably dangerous condition because they appeared to be a safety device but were too lightweight to prevent a person from falling through the dock door.

Drivers who delivered merchandise to the warehouse were supposed to stand in an area behind a yellow line while they waited for their trucks to be unloaded. *675 The purpose of the yellow line was to separate the drivers from the forklifts driving back and forth unloading the trucks. The line was about eight feet from the edge of the dock bays. No one told Smith or George the purpose of the yellow line, and the line requirement was not enforced.

Assuming, without deciding, that appellants provided sufficient evidence to show, for summary judgment purposes, that the chains constituted an unreasonable risk of harm, we cannot conclude appellants met their burden of proof to show the other two challenged elements: appellee’s actual or constructive knowledge of the unreasonable risk of harm or proximate causation of appellants’ injuries.

In the trial court, appellee argued no evidence indicated anyone else had ever fallen through the chain, and, therefore, it had no actual or constructive knowledge of the alleged unreasonably dangerous condition. “Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.2008) (per curiam).

Appellants contend, first, that the absence of other injury reports, while probative, does not conclusively establish the absence of an unreasonable risk of harm. Appellants cite evidence showing appellee took down the chains after Smith’s injury and returned to its prior practice of placing warning cones in front of the open doors, implying that the import of the absence of other accidents is weakened by the shortness of the period the chains were used. The difficulty with appellants’ argument is that, even if correct, it does not address their burden to produce evidence showing appellee knew of the alleged risk. No evidence in the record indicates appel-lee knew the chain posed an unreasonable risk of harm. See id.

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Bluebook (online)
260 S.W.3d 672, 2008 Tex. App. LEXIS 5633, 2008 WL 2896622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-mohawk-mills-inc-texapp-2008.