In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00566-CV ____________________
THERESA WILSON, Appellant
V.
CBL/PARKDALE MALL GP, LLC A/K/A CBL PARKDALE MALL, LT, CBL PARKDALE CROSSING, GP, CBL PARKDALE CROSSING, AND CBL & ASSOCIATES, LLP, Appellees _______________________________________________________ ______________
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-187,035 ________________________________________________________ _____________
MEMORANDUM OPINION
Theresa Wilson sued CBL/Parkdale Mall GP, LLC a/k/a CBL Parkdale Mall
LT, CBL Parkdale Crossing, GP, CBL Parkdale Crossing, and CBL & Associates,
LLP (“Parkdale”) for premises liability. Parkdale filed a no-evidence motion for
summary judgment, which the trial court granted. In a single issue on appeal,
Wilson challenges the trial court’s decision to grant Parkdale’s no-evidence
motion. We affirm the trial court’s judgment.
1 Factual Background
In her deposition, Wilson testified that she and her daughter were walking
inside Parkdale Mall when she slipped in a red substance on the floor and fell onto
her left side. Wilson testified that she had been looking straight ahead and never
saw the substance before the accident, but that she probably would have seen the
substance had she been looking down. MarKimmbra Smith, Wilson’s daughter,
testified that she saw a “nice size puddle” and stepped over it. She testified that the
substance was “out in the open.” Wilson testified that the substance probably came
from a spilled drink. Smith testified that a custodian asked Wilson, “You didn’t see
that? This is not my area.” According to Smith, Wilson asked the custodian why
she had not cleaned the substance and the custodian replied, “But this is not my
area.” Wilson testified that the custodian cleaned the substance. Smith testified that
the substance was sticky and the custodian had difficulty cleaning the substance.
Wilson stated that, before the accident, she did not see anyone cleaning the
spill, any warning signs, or any cleaning supplies in the area. Wilson believed that
Parkdale needed to hire more people to help with clean up. Smith did not believe
Wilson could have done anything differently to avoid the accident. Smith felt that
she could have warned Wilson about the liquid. Wilson testified that the fall
injured her left shoulder and hip, both of which required surgery.
2 In its interrogatory responses, Parkdale admitted there were no warning
signs in the area at the time of Wilson’s fall. Parkdale also stated that it had no
notice of the substance on the floor until after the accident. Parkdale explained that
it contracts with a third party janitorial and security service and that party’s
employees cleaned the substance from the floor where Wilson fell and conducted a
post-accident investigation. According to Parkdale, employees continuously patrol
the mall for spills and hazardous conditions, and if any such spill or condition is
observed or brought to the employee’s attention, the area is secured and a warning
sign is placed while the spill or condition is remedied.
When granting Parkdale’s no-evidence motion, the trial court stated:
Actual Knowledge: The plaintiff, in an effort to establish actual knowledge, present[s] [her] testimony which attributes a statement to an unidentified individual who was, purportedly, a member of the cleaning crew. According to the plaintiffs, after the fall, the slippery area was called to that individual’s attention to which she responded “That’s not my area[.]” While this might support a plausible inference of prior knowledge on the part of the individual, it could, likewise, support equally plausible inferences that would not establish actual knowledge. Under those circumstances, it is legally insufficient evidence.
Constructive Knowledge: The only potential evidence of constructive knowledge contained in the record before the Court would be the proximity of the unidentified member of the cleaning crew to the condition in question. While proximity to the alleged hazard in question may be considered, it must be considered along with the “conspicuity and longevity” of the condition.
3 In the record before the Court, there is insufficient evidence for the Court to perform this analysis such that it could conclude that there is some evidence of constructive knowledge on the part of the defendant. (footnotes omitted).
Summary Judgment
After an adequate time for discovery has passed, a defendant may move for
summary judgment on grounds that there is no evidence of one or more essential
elements of the plaintiff’s claim. Tex. R. Civ. P. 166a(i). The trial court must grant
the motion unless the plaintiff produces summary judgment evidence raising a
genuine issue of material fact. Id.; Timpte Indus. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). We review the summary judgment evidence in the light most
favorable to the party against whom summary judgment was rendered. Gish, 286
S.W.3d at 310. We credit evidence favorable to that party if reasonable jurors
could and disregard contrary evidence unless reasonable jurors could not. Id.
To establish a premises liability claim, Wilson must show that (1) Parkdale
had “actual or constructive knowledge of some condition on the premises,” (2) “the
condition posed an unreasonable risk of harm,” (3) Parkdale “did not exercise
reasonable care to reduce or eliminate the unreasonable risk of harm,” and (4)
Parkdale’s “failure to use reasonable care to reduce or eliminate the unreasonable
risk of harm proximately caused [Wilson’s] injuries.” LMB, Ltd. v. Moreno, 201
S.W.3d 686, 688 (Tex. 2006). Because Wilson was an “invitee”, Parkdale owed “a 4 duty to use ordinary care to reduce or eliminate an unreasonable risk of harm
created by a premises condition about which [it] knew or should have known.”
Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). In its no-evidence
motion, Parkdale argued that Wilson could present no evidence to prove any of the
above elements.
The threshold question that we must answer is whether Parkdale had actual
or constructive knowledge of a dangerous condition on the premises. See Motel 6
G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A slip-and-fall plaintiff satisfies
the notice element by showing that “(1) the defendant placed the substance on the
floor, (2) the defendant actually knew that 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 v. Reece, 81
S.W.3d 812, 814 (Tex. 2002). Wilson contends that (1) the custodian’s statement
that the liquid was not in her area constitutes evidence of actual knowledge; and
(2) the liquid had existed for such a length of time that Parkdale had constructive
knowledge of the liquid.
Actual knowledge requires knowledge that the dangerous condition existed
at the time of the accident, while constructive knowledge can be established by
facts or inferences that a dangerous condition could develop over time. City of
5 Corsicana v.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00566-CV ____________________
THERESA WILSON, Appellant
V.
CBL/PARKDALE MALL GP, LLC A/K/A CBL PARKDALE MALL, LT, CBL PARKDALE CROSSING, GP, CBL PARKDALE CROSSING, AND CBL & ASSOCIATES, LLP, Appellees _______________________________________________________ ______________
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-187,035 ________________________________________________________ _____________
MEMORANDUM OPINION
Theresa Wilson sued CBL/Parkdale Mall GP, LLC a/k/a CBL Parkdale Mall
LT, CBL Parkdale Crossing, GP, CBL Parkdale Crossing, and CBL & Associates,
LLP (“Parkdale”) for premises liability. Parkdale filed a no-evidence motion for
summary judgment, which the trial court granted. In a single issue on appeal,
Wilson challenges the trial court’s decision to grant Parkdale’s no-evidence
motion. We affirm the trial court’s judgment.
1 Factual Background
In her deposition, Wilson testified that she and her daughter were walking
inside Parkdale Mall when she slipped in a red substance on the floor and fell onto
her left side. Wilson testified that she had been looking straight ahead and never
saw the substance before the accident, but that she probably would have seen the
substance had she been looking down. MarKimmbra Smith, Wilson’s daughter,
testified that she saw a “nice size puddle” and stepped over it. She testified that the
substance was “out in the open.” Wilson testified that the substance probably came
from a spilled drink. Smith testified that a custodian asked Wilson, “You didn’t see
that? This is not my area.” According to Smith, Wilson asked the custodian why
she had not cleaned the substance and the custodian replied, “But this is not my
area.” Wilson testified that the custodian cleaned the substance. Smith testified that
the substance was sticky and the custodian had difficulty cleaning the substance.
Wilson stated that, before the accident, she did not see anyone cleaning the
spill, any warning signs, or any cleaning supplies in the area. Wilson believed that
Parkdale needed to hire more people to help with clean up. Smith did not believe
Wilson could have done anything differently to avoid the accident. Smith felt that
she could have warned Wilson about the liquid. Wilson testified that the fall
injured her left shoulder and hip, both of which required surgery.
2 In its interrogatory responses, Parkdale admitted there were no warning
signs in the area at the time of Wilson’s fall. Parkdale also stated that it had no
notice of the substance on the floor until after the accident. Parkdale explained that
it contracts with a third party janitorial and security service and that party’s
employees cleaned the substance from the floor where Wilson fell and conducted a
post-accident investigation. According to Parkdale, employees continuously patrol
the mall for spills and hazardous conditions, and if any such spill or condition is
observed or brought to the employee’s attention, the area is secured and a warning
sign is placed while the spill or condition is remedied.
When granting Parkdale’s no-evidence motion, the trial court stated:
Actual Knowledge: The plaintiff, in an effort to establish actual knowledge, present[s] [her] testimony which attributes a statement to an unidentified individual who was, purportedly, a member of the cleaning crew. According to the plaintiffs, after the fall, the slippery area was called to that individual’s attention to which she responded “That’s not my area[.]” While this might support a plausible inference of prior knowledge on the part of the individual, it could, likewise, support equally plausible inferences that would not establish actual knowledge. Under those circumstances, it is legally insufficient evidence.
Constructive Knowledge: The only potential evidence of constructive knowledge contained in the record before the Court would be the proximity of the unidentified member of the cleaning crew to the condition in question. While proximity to the alleged hazard in question may be considered, it must be considered along with the “conspicuity and longevity” of the condition.
3 In the record before the Court, there is insufficient evidence for the Court to perform this analysis such that it could conclude that there is some evidence of constructive knowledge on the part of the defendant. (footnotes omitted).
Summary Judgment
After an adequate time for discovery has passed, a defendant may move for
summary judgment on grounds that there is no evidence of one or more essential
elements of the plaintiff’s claim. Tex. R. Civ. P. 166a(i). The trial court must grant
the motion unless the plaintiff produces summary judgment evidence raising a
genuine issue of material fact. Id.; Timpte Indus. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). We review the summary judgment evidence in the light most
favorable to the party against whom summary judgment was rendered. Gish, 286
S.W.3d at 310. We credit evidence favorable to that party if reasonable jurors
could and disregard contrary evidence unless reasonable jurors could not. Id.
To establish a premises liability claim, Wilson must show that (1) Parkdale
had “actual or constructive knowledge of some condition on the premises,” (2) “the
condition posed an unreasonable risk of harm,” (3) Parkdale “did not exercise
reasonable care to reduce or eliminate the unreasonable risk of harm,” and (4)
Parkdale’s “failure to use reasonable care to reduce or eliminate the unreasonable
risk of harm proximately caused [Wilson’s] injuries.” LMB, Ltd. v. Moreno, 201
S.W.3d 686, 688 (Tex. 2006). Because Wilson was an “invitee”, Parkdale owed “a 4 duty to use ordinary care to reduce or eliminate an unreasonable risk of harm
created by a premises condition about which [it] knew or should have known.”
Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). In its no-evidence
motion, Parkdale argued that Wilson could present no evidence to prove any of the
above elements.
The threshold question that we must answer is whether Parkdale had actual
or constructive knowledge of a dangerous condition on the premises. See Motel 6
G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A slip-and-fall plaintiff satisfies
the notice element by showing that “(1) the defendant placed the substance on the
floor, (2) the defendant actually knew that 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 v. Reece, 81
S.W.3d 812, 814 (Tex. 2002). Wilson contends that (1) the custodian’s statement
that the liquid was not in her area constitutes evidence of actual knowledge; and
(2) the liquid had existed for such a length of time that Parkdale had constructive
knowledge of the liquid.
Actual knowledge requires knowledge that the dangerous condition existed
at the time of the accident, while constructive knowledge can be established by
facts or inferences that a dangerous condition could develop over time. City of
5 Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008). When addressing
actual knowledge, courts generally consider whether the premises owner received
reports of prior injuries or the potential danger presented by the condition. Univ. of
Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008). Circumstantial
evidence establishes actual knowledge only when it directly or by reasonable
inference supports that conclusion. Stewart, 249 S.W.3d at 415. When
circumstantial evidence is used to prove constructive knowledge, the evidence
must show that it is more likely than not that the dangerous condition existed long
enough to give the premises owner a reasonable opportunity to discover it. Wal-
Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
An employee’s proximity to a condition, without evidence of how long the
condition existed, merely indicates that it was possible for the premises owner to
discover the condition, not that the premises owner reasonably should have
discovered it. Reece, 81 S.W.3d at 816. If the condition is conspicuous, such as a
large puddle of dark liquid on a light floor, an employee’s proximity to the
condition might shorten the time in which a factfinder could determine that the
premises owner should reasonably have discovered it. Id. That an employee was in
close proximity to a less conspicuous condition for a continuous and significant
period of time could also affect the factfinder’s consideration of whether the
6 premises owner should have become aware of the dangerous condition. Id. In
either case, there must be some proof of how long the condition was present before
liability can be imposed on the premises owner for failing to discover, rectify, or
warn of the dangerous condition. Id.
The record does not indicate that Parkdale had received reports of prior
injuries or the potential danger presented by the spilled substance. See Aguilar, 251
S.W.3d at 514. The custodian’s statement that the spill was not in her assigned area
could mean that she was aware of the spilled substance, but did not clean up the
substance because she was not assigned to that area. The statement could also give
rise to the equal inference that she was unaware of the spilled substance because
she was not assigned to that area. A factfinder cannot infer an ultimate fact from
such meager circumstantial evidence that gives rise to a number of inferences,
none more probable than the other. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d
387, 392 (Tex. 1997); see Gonzalez, 968 S.W.2d at 936; see also Univ. of Tex. at
El Paso v. Muro, 341 S.W.3d 1, 5-6 (Tex. App.—El Paso 2009, no pet.).
Moreover, testimony that the substance was sticky and difficult to clean merely
indicates that the substance possibly existed long enough for Parkdale to notice it.
See Gonzalez, 968 S.W.2d at 938. Absent evidence demonstrating how long the
7 condition had existed, the custodian’s proximity to the substance does not indicate
that Parkdale reasonably should have discovered it. See Reece, 81 S.W.3d at 816.
Viewing the evidence in the light most favorable to Wilson, we conclude
that Wilson did not produce summary judgment evidence raising a genuine issue of
material fact to support the knowledge element of her premises liability claim. See
Tex. R. Civ. P. 166a(i); see also Gish, 286 S.W.3d at 310. Accordingly, the trial
court properly granted Parkdale’s no-evidence motion for summary judgment
disposing of Wilson’s claim against Parkdale. We overrule Wilson’s sole issue and
affirm the trial court’s judgment.
AFFIRMED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on April 22, 2013 Opinion Delivered May 9, 2013 Before McKeithen, C.J., Kreger and Horton, JJ.