Marjorie Messer v. Texas Roadhouse Restaurant, A/K/A Texas Roadhouse of Waco, A/K/A Texas Roadhouse of Waco, LLC, A/K/A Texas Roadhouse of Waco, LTD ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00340-CV

Marjorie Messer,

                                                                                    Appellant

 v.

Texas Roadhouse Restaurant, a/k/a Texas

Roadhouse of Waco, a/k/a Texas Roadhouse

of Waco, LLC, a/k/a Texas Roadhouse of Waco,  LTD,

                                                                                    Appellees

From the 170th District Court

McLennan County, Texas

Trial Court No. 2004-1924-4

CONCURRING  Opinion

I fully join Justice Reyna’s opinion and concur in the judgment, but I write separately to emphasize two points.

Adequacy of Summary Judgment Response

            Messer’s summary judgment response addresses the evidence on the second element—the condition posed an unreasonable risk of harm—by repeatedly referring to evidence of the elevated booth’s “dangerous condition.”  That element is often shorthandedly referred to as the “unreasonably dangerous condition” or the “dangerous condition.”[1] Messer’s summary judgment response begins by noting that Texas Roadhouse asserts that “Plaintiff has no evidence that a condition which caused an unreasonable risk of harm to Plaintiff existed on the premises of Defendant, and (2) that, if such condition existed, Plaintiff has no evidence that Defendant had actual or constructive knowledge of the alleged condition on its premises.”  Messer then states one of the several legal issues presented by the no-evidence summary judgment motion:  “1. Has Non-movant produced any factual evidence which would support a jury’s finding that the elevated flooring of the booth created a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care?”  And Messer concludes her recitation of the legal issues by stating:

Whether the elevated flooring of the booth in which Plaintiff and her party were seated was a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care are fact issues for a jury.  Whether Defendant knew or should have known of a dangerous condition is also a fact issue for a jury.

The dissent would affirm the trial court’s no-evidence summary judgment based solely on semantics (i.e., Messer’s failure to use “magic words” on the second element), stating that Messer’s response “does not contend that, that evidence raises a fact issue as to whether the condition of Texas Roadhouse’s premises constituted an unreasonable risk of harm.”  Dissent, post at 3.  The above quotations from Messer’s response refute the dissent’s assertion, and it is also telling that Texas Roadhouse does not assert this reason as a basis for affirming the trial court.  Moreover, the gravamen of a response to a no-evidence motion for summary judgment is not the use of magic words in the response, but the production of “summary judgment evidence raising a genuine issue of material fact.”  Tex. R. Civ. P. 166a(i); see id. Comment—1997 (“To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.”).

Improper Conflation of Premises Liability Elements

The four elements of a premises liability cause of action are:

(1) the owner had actual or constructive knowledge of some condition on the premises;

(2) the condition posed an unreasonable risk of harm;

(3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and

(4) the owner’s failure to use such care proximately caused the plaintiff’s injuries.  LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

Texas Roadhouse contends that Messer was required but failed to produce evidence that Texas Roadhouse “knew, or had constructive knowledge, that the raised booth posed an unreasonable risk of harm.”[2] I believe that this argument improperly conflates the first two elements of a premises liability cause of action: (1) the owner had actual or constructive knowledge of some condition on the premises; and (2) the condition posed an unreasonable risk of harm.  Compare Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 344-45 (Tex. App.—Waco 2005, pet. filed) (separately addressing evidence on first two elements) with id. at 346-47 (Gray, C.J., dissenting) (conflating the two elements and arguing that owner must have actual or constructive knowledge of the unreasonably dangerous condition).

The improper conflation of the first two elements appears to arise in part from the loose use of, or the misplaced focus on,[3] the language in the third element, the breach-of-duty element—the owner did not exercise reasonable care to reduce or eliminate the risk of harm—and descriptions in case law of the duty.[4]  The first two elements are the factual predicate for the imposition of a duty of reasonable care on the owner, and the third element articulates the duty of reasonable care by incorporating the first two elements into the third and inquires whether the duty was breached.

Texas Roadhouse’s and the Alger dissent’s improper conflation of the first two elements is wrong because it removes the objective standard that exists in the second element—the condition posed an unreasonable risk of harm—and replaces it with a subjective standard on the owner’s part. The first element—the owner had actual or constructive knowledge of some condition—has a subjective (actual knowledge)[5] and an objective (constructive knowledge)[6] component.  The second element—the condition posed an unreasonable risk of harm—is purely objective:  whether a condition is a danger is a function of reasonableness, i.e., whether a reasonably prudent person would foresee that harm was a likely result of the condition.  See Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex. 1975); see also County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (“A condition poses an unreasonable risk of harm for premises-defect purposes when there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.”).

Of course, courts can determine that a particular condition does not pose an unreasonable risk of harm as a matter of law.[7] But whether a condition poses an unreasonable risk of harm usually is an inherent fact question determined objectively from the reasonably prudent person standpoint.[8]

I believe that the error of those who would improperly conflate the first two elements also arises from equating temporary-dangerous-condition cases (e.g., spills) with permanent-dangerous-condition cases such as this case and Alger.  In a temporary-dangerous-condition case involving, for example, spilled liquid on a store floor, that condition almost always poses an unreasonable risk of harm, and the crux is usually whether the owner had actual or constructive knowledge of the temporary dangerous condition—the spilled liquid.[9] Thus, the key issue is usually framed as whether the owner had actual or constructive knowledge of the unreasonably dangerous condition, i.e., the spilled liquid on the store floor.  But a permanent-dangerous-condition case presents a converse situation; the owner is usually going to have knowledge of the allegedly dangerous condition.[10] Equating typical temporary and permanent condition cases can thus lead to the improper conflation of the first two elements posited by Texas Roadhouse and the Alger dissent:  the plaintiff is required to produce evidence that the defendant actually knew or had constructive knowledge that the condition posed an unreasonable risk of harm.

Moreover, an important distinction exists between knowing that a condition exists and knowing that the condition is unreasonably dangerous; that distinction makes a world of difference on the plaintiff’s evidentiary burden. Conflating the first two elements results in a plaintiff having to prove that the owner had actual or constructive knowledge that the condition was unreasonably dangerous.  A plaintiff would have to prove that the owner subjectively knew that the condition was unreasonably dangerous yet consciously disregarded it or failed to warn of it; a plaintiff would be required to produce evidence of the owner’s subjective state of mind—that the owner knew of and considered the condition to be unreasonably dangerous—an almost impossible burden to meet absent an admission by the owner.

            Texas Roadhouse knew that it had elevated booths in its restaurant; its dispute is whether the elevated booths pose an unreasonable risk of harm.  The crux of this case, therefore, is whether the elevated booths pose an unreasonable risk of harm.  To require Messer to produce evidence that Texas Roadhouse knew that its elevated booths posed an unreasonable risk of harm would impose an almost impossible burden on her. Because Messer presented some evidence that the elevated booths pose an unreasonable risk of harm, and because we cannot say as a matter of law that the elevated booths do not pose an unreasonable risk, a genuine issue of material fact exists on that element, to be determined by a jury.

BILL VANCE

Justice

Concurring opinion delivered and filed May 9, 2007

---

[1]               See, e.g., Brookshire Groc. Co. v. Taylor, --- S.W.3d ---, ---, 2006 WL 3456559, at *1-2 (Tex.  Dec. 1, 2006) (“Brookshire was obliged to use reasonable care to protect Taylor, its invitee, from any unreasonably dangerous condition in its store of which it had actual or constructive knowledge.”) (“And in H.E. Butt Grocery Co. v. Resendez, we held that a grocery store’s self-service display of loose grapes in a recessed bowl on a rimmed table standing on a non-skid floor and surrounded by mats and warning cones was not an unreasonably dangerous condition; rather, the grape on which the plaintiff slipped was the dangerous condition.”) (emphases added); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (“affidavit does not set out specific facts from which a jury could reasonably infer that LMB knew or should have known of some unreasonably dangerous condition of the premises which was involved in the accident”) (emphasis added); CMH Homes, Inc. v. Daenan, 15 S.W.3d 97, 101 (Tex. 2000) (“the core of the duty depends on actual or constructive knowledge of a dangerous condition that a reasonable inspection would reveal”) (emphasis added); Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (“An invitee must show that a land owner either knew, or after reasonable inspection should have known, of an unreasonably dangerous condition before arguing that the owner breached a duty by failing to take any one of several precautions.”) (emphasis added); Rosas v. Buddie’s Food Store, 518 S.W.2d 535, 538 (Tex. 1975) (“we hold that reasonable minds could differ as to the dangerous character of the wet floor”) (emphasis added); Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 347 (Tex. App.—Waco 2005, pet. filed) (Gray, C.J., dissenting) (“Finding no evidence that Brinson Ford knew, or had any reason to know, of an unreasonably dangerous condition on the premises, I would affirm the judgment.”) (emphasis added).

[2] The dissent alludes to but avoids addressing this issue. Dissent, post at 2, n.1.

[3] See, e.g., Alger, 169 S.W.3d at 346 (Gray, C.J., dissenting) (“If you fast forward over to issue three, when discussing reasonable care, the cited cases are referencing whether or not the owner/occupier failed to take reasonable care to eliminate the unreasonably dangerous condition the owner/occupier knew existed or, by the exercise of reasonable care, would discover.”).

[4]               “The duty owed is to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover.”  CMH Homes, 15 S.W.3d at 101.

[5] When a defendant or its employee learns of a dangerous condition, the defendant has actual knowledge or notice of the dangerous condition.  E.g., Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex. App.—Austin 2000, pet. denied) (employee saw customers stumbling over step).  “Actual knowledge is what a person directly and clearly knows.”  O’Connor’s Texas Causes of Action 715 (2007) (citing Black’s Law Dictionary 888 (8th ed. 2004)).

[6] “Constructive knowledge is what a person does not actually know but objectively should know or has reason to know.”  O’Connor’s Texas Causes of Action 716 (2007) (citing Black’s Law Dictionary 888 (8th ed. 2004)).

[7] E.g., M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004) (mud and dirt that accumulated naturally on concrete slab outside business did not pose unreasonable risk); Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex. 1996) (small rock in dirt clod at rodeo arena not unreasonable risk).

[8] See, e.g., Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“The determination of whether a particular condition poses an unreasonable risk of harm is generally fact specific.”); Alger, 169 S.W.3d at 345 (“We conclude that reasonable minds could differ as to whether this ramp posed an unreasonable risk of harm; thus, whether this ramp is unreasonably dangerous is a fact question for a jury.”); Brooks v. First Assembly of God Church, 86 S.W.3d 793, 797 (Tex. App.—Waco 2002, no pet.) (“Whether a particular risk is unreasonable or not is a fact question for the jury.”), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 n.11 (Tex. 2004); Reliable Consultants, 25 S.W.3d at 342 (“It is important to note that reasonableness determinations such as the one here are fact-intensive inquiries and, as such, are issues well-suited for a jury’s determination.”).

[9] A slip-and-fall plaintiff satisfies the actual or constructive knowledge element by establishing 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, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

[10] “The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. . . .  Creating the condition does not establish knowledge as a matter of law for purposes of premises liability, however, creation of the condition is circumstantial evidence of knowledge.”  Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex. App.—El Paso 2003, no pet.) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265-66 (Tex. 1992)).