Margaret T. Browne v. the Kroger Company ( 2005 )

Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed June 21, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00604-CV

____________

MARGARET T. BROWNE, Appellant

V.

KROGER COMPANY, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 03-17592

M E M O R A N D U M   O P I N I O N

Appellant Margaret T. Browne filed suit against her employer, Kroger Company, seeking damages for a neck injury she alleges resulted from Kroger’s negligence in requiring her to perform certain tasks even though she informed Kroger that performing the tasks might injure her.  The trial court granted Kroger’s motion for summary judgment, disposing of Browne’s claims against it.  We reverse the summary judgment as to Browne’s claim that Kroger was negligent and remand the case for further proceedings below on this issue, and we affirm the summary judgment as to Browne’s premises liability claim.

I.        Background

In April of 2001, Browne was working at a Kroger store as a cashier or customer service representative.  As Browne performed tasks in preparation for the store’s “grand reopening,” her neck “popped.”  She later sued Kroger, a nonsubscriber to worker’s compensation, alleging that she suffered bodily injuries as a direct result of the tasks performed.  Browne also alleged her injuries were proximately caused by a dangerous condition, which she described as Kroger’s “failure to use ordinary care in the removal of debris created by extensive remodeling of the building.”

Kroger moved for summary judgment, contending that Browne could not establish (1) any negligent act or omission by Kroger, or (2) any unreasonably dangerous condition of which Kroger had notice to support a premises liability claim. Kroger’s motion was based on a “Supervisor’s Report of Accident” completed by a Kroger manager, Greg Clemmer, and an “Associate’s Report of Accident” completed by Browne.  In the associate’s report, Browne stated that she was cleaning the store with a sponge, which she had been trained to use, for the re-opening day when her “neck popped.”  She also stated “I don’t know why it popped” and no one saw it. Browne also indicated that her neck had been injured seven years earlier when a horse threw her, and she was not receiving treatment for that injury at the time of this injury.

In response to Kroger’s motion for summary judgment, Browne offered an affidavit detailing the circumstances of her injury.  In this affidavit, Browne stated that, on May 3, 2001, Greg Clemmer asked her to perform numerous tasks related to the Kroger store’s “Grand Reopening,” including scrubbing doors, cinder block walls, sheet rocked walls, and display cabinets, and moving end caps and merchandise.  She stated that, as a checker or customer service representative, she normally performed none of these tasks, and she told Clemmer that manual labor was too strenuous and not good for her neck; she also pointed out that she previously had surgery on her neck.  Describing how she was injured, Browne stated that, after several hours of this work, while she was “‘bullying’ the end cap of one of the wine displays,” she heard her neck pop.  Two hours later, Browne felt like her neck “was on fire” and she felt a lump the size of her thumb protruding from the back of her neck.  Browne stated that, although she repeatedly told Clemmer and another employee that her neck was hurting greatly, she was required to continue working that day and the next day, until she demanded to see a doctor. Before she was allowed to see the doctor, she was required to fill out the accident report.

The trial court granted Kroger’s motion for summary judgment, and this appeal followed.

II.       Analysis

On appeal, Browne contends that her affidavit created genuine issues of material fact and that Kroger failed to negate any elements of her negligence claim, precluding summary judgment in Kroger’s favor.  Kroger responds that its summary judgment evidence, based on Browne’s own version of events, demonstrated no actionable negligence as a matter of law.  Moreover, Kroger contends that Browne’s affidavit should be disregarded because it is a sham affidavit, and even if it is considered, it is conclusory and contains no evidence that Kroger failed to provide Browne with a safe workplace or that any premises defect was implicated in her accident. As explained below, we reverse and remand the summary judgment as to Browne’s negligence claim and affirm as to Browne’s premises liability claim.

A.      Standard of Review

Kroger sought summary judgment under Texas Rule of Civil Procedure 166a(c).  Therefore, Kroger bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Rhone‑Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference in the nonmovant’s favor.  See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  When, as here, the trial court’s order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.  Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

B.      Browne’s Negligence Claim

We first analyze Kroger’s contention in its summary judgment motion that Browne could not establish any negligent act or omission on its part.

1.       The Employer’s Duty to Provide a Safe Workplace

Because Kroger is a nonsubscriber to workers’ compensation, for Browne to recover, she must establish that Kroger was negligent.  See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995); see also Tex. Lab. Code § 406.033(d).  To establish negligence, Browne must produce evidence to establish (1) a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach.  Werner, 909 S.W.2d at 869.

Although it is not an insurer of its employees’ safety, Kroger owes a duty of ordinary care to provide a safe workplace for its employees.  See id.  Determining whether an employer breached its duty to provide a safe workplace is necessarily fact specific.  See Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943).  A plaintiff must offer evidence that the task involved was unusual or that it posed a threat of injury, see Werner, 909 S.W.2d at 869, and the injury must be reasonably foreseeable in the context of the work being performed.  See Kroger Co. v. Keng, 976 S.W.2d 882, 885 (Tex. App.—Tyler 1998), aff’d, 23 S.W.3d 347 (Tex. 2000).  When there is reason to anticipate from the work to be performed and the manner of performance that injury may result to an employee, the employer must exercise ordinary care to prevent injury.  Id. at 887.  The mere fact that an accident happened and injury occurred is insufficient to establish negligence.  McClish v. R.C. Young Feed & Seed Co., 225 S.W.2d 910, 912–13 (Tex. Civ. App.—Amarillo 1949, writ ref’d).

2.       Application of Law to Facts

a.       Kroger’s contention that Browne’s affidavit is a sham affidavit

As a threshold issue, Kroger maintains that Browne’s version of the incident contained in her affidavit materially contradicts that described in her accident report. Without an explanation for the contradictions, Kroger maintains, the affidavit is a sham affidavit—filed only to defeat summary judgment—and so should be disregarded.  See Blan v. Ali, 7 S.W.3d 741, 746 n.3 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (recognizing that a trial court is precluded from considering an affidavit that contradicts deposition testimony without an explanation for the change in testimony); Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (holding that a party cannot file an affidavit to contradict his own deposition testimony, without explanation, for the purpose of creating a fact issue to avoid summary judgment).

However, the record does not show that Kroger objected to the affidavit on this basis below.  Absent a timely objection and a ruling from the trial court, the complaint that a summary judgment affidavit is a sham is waived for purposes of appellate review.  See Tex. R. App. P. 33.1; Bexar County v. Lopez, 94 S.W.3d 711, 715 (Tex. App.—San Antonio 2002, no pet.).  Therefore, we will consider Browne’s affidavit.

b.       The allegations in Browne’s affidavit

In its motion for summary judgment, Kroger contended Browne could not prove actionable negligence because her own statement showed that her neck popped for no known reason.^[1]  On appeal, Kroger further contends that Browne’s affidavit, filed in response to its motion for summary judgment, is conclusory and raises no genuine issue of material fact.

To be competent summary judgment evidence, an affidavit must be based on personal knowledge, set forth facts admissible in evidence, and affirmatively show the affiant’s competency to testify as to the matters stated therein.  Tex. R. Civ. P. 166a(f). Affidavits containing conclusory statements unsupported by facts are not competent summary judgment evidence.  Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  An objection that an affidavit is conclusory is an objection to the substance of the affidavit that may be raised for the first time on appeal. Hou‑Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Kroger mainly contends that Browne’s description of the incident is conclusory because it contains no supporting facts to explain what “bullying” an end cap means, and therefore fails to raise a fact issue.  We disagree that the affidavit is conclusory.  In summary, Browne stated that, in preparation for the Kroger store’s grand reopening, she was asked to perform various tasks that were not normally a part of her job as a checker or customer service representative.  She informed a Kroger manager that manual labor was too strenuous and not good for her neck.  After several hours of this work, while she was “bullying” the end cap of one of the wine displays, she heard her neck “pop,” and later suffered pain and swelling in her neck for which she demanded to see a doctor.

Indulging all reasonable inferences in favor of Browne, these statements are sufficient to raise a fact issue concerning whether Kroger breached its duty of care to Browne. Kroger emphasizes that, in her affidavit, Browne does not explain what “bullying” an end cap means, and only in her appellate brief did she suggest it means “forcing.”  However, merely because an expression may not be familiar to Kroger does not mean that it is unreasonable to infer that it means something akin to “forcing.”  Moreover, Browne stated that “moving end caps and merchandise” was part of the manual labor she was asked to perform despite having informed her manager that such tasks could cause injury to her.  Kroger also complains that Browne offers no facts to distinguish her regular duties from the duties she was asked to perform in preparation for the reopening of the store.  It is sufficient, however, that Browne stated that the duties she was asked to perform, including the one that caused her injury, were not normally part of her job as a checker or customer service representative. 

We hold that Browne’s affidavit raises a genuine issue of material fact concerning whether Kroger was negligent.  Therefore, summary judgment as to this claim is reversed and remanded to the trial court.

C.      Browne’s Premises Liability Claim

The second basis for Kroger’s summary judgment motion was that Browne could not establish that Kroger had notice of any unreasonably dangerous condition on its premises as required to support a premises liability claim.  We agree that Browne failed to raise a fact issue on this claim.

To recover on a premises liability theory, a plaintiff must prove that (1) the owner had actual or constructive knowledge of a 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, and (4) the owner’s failure to use such care proximately caused the plaintiff’s injury.  CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).  An owner or occupier is not deemed an insurer of injuries to its invitees.  Id. at 101.  Instead, an owner or occupier owes a duty to guard against dangerous conditions on the land that create an unreasonable risk of harm which it knew, or by the exercise of reasonable care, would have discovered.  Id.

In response to Kroger’s summary judgment  motion, Browne asserted only that Kroger placed her in an unreasonably dangerous condition by requiring her to perform the manual labor.  However, this allegation does not satisfy the elements of proof to maintain a premises defect claim.  Moreover, nothing in Browne’s affidavit raises a fact issue concerning whether Kroger had knowledge of any dangerous condition on the premises, and she does not address the issue on appeal.  Therefore, we hold that Kroger was entitled to summary judgment to the extent Browne alleged a premises defect claim. 

III.      Conclusion

We affirm the trial court’s summary judgment as to Browne’s premises defect claim.  We reverse the summary judgment as to Browne’s negligence claim and remand this claim for further proceedings consistent with this opinion.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 21, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

---

^[1]  Kroger sought summary judgment only on the element of breach of duty; it did not move for summary judgment on the element of proximate cause.