Linda Castro and Manuel Castro v. H.E.B. Grocery Company, L.P., D/B/A HEB ( 2019 )

Affirmed and Memorandum Opinion filed June 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00277-CV
LINDA CASTRO AND MANUEL CASTRO, Appellants
V.
H.E.B. GROCERY COMPANY, L.P. D/B/A HEB, Appellee
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-16-005280
MEMORANDUM OPINION
Appellants Linda and Manuel Castro appeal a summary judgment dismissing
their slip-and-fall lawsuit. The only issue is whether appellee H.E.B. Grocery
Company, L.P., d/b/a HEB (“HEB”) had actual or constructive notice of the alleged
dangerous condition on the premises, and the Castros contend they presented
sufficient evidence to create a fact issue for the jury. We conclude the evidence
presented fails to raise a genuine issue of material fact that appellee was actually or
constructively aware of the alleged hazard. Therefore, we affirm the judgment.
Background
Appellants Linda and Manuel Castro were shopping at a grocery store owned
by HEB and located on West Highway 71 in Austin. While perusing produce, Linda
slipped and fell on a leaf of kale or lettuce. Manuel was walking about ten feet in
front of Linda and did not see her fall, nor had he noticed anything on the floor when
he walked over the area where Linda slipped. An HEB employee, Jaye Debatista,
was stocking lettuce1 five to fifteen feet away from where Linda fell. Out of the
corner of his eye, Debatista saw Linda fall, but he did not have a direct line of sight
and could not see what caused her fall. Store manager-in-charge Joseph Lagasse
arrived within a few minutes, and there is no evidence that he saw Linda fall. No
witness saw the lettuce before Linda slipped on it, nor could anyone posit how it
came to be on the floor or how long it had been there before the accident. The lettuce
was on the floor in front of an asparagus and broccoli display, which was several
feet away from the display where Debatista was stocking lettuce. Linda alleged she
injured her knee, wrists, neck, and back in the fall.
The Castros sued HEB and asserted a negligence cause of action based on an
alleged premises defect. The Castros alleged that the lettuce was an unreasonably
dangerous condition, of which HEB knew or should have known, and that HEB’s
failure to correct or warn of the hazard proximately caused Linda injury. HEB
answered and later filed simultaneous motions seeking both no-evidence and
traditional summary judgment. Both motions challenged the actual or constructive
notice element of the Castros’ premises liability claim. HEB asserted that the
1
Debatista stated unequivocally that the leafy green was kale; the other witnesses generally
referred to it as lettuce. The distinction is immaterial for our purposes, and we will refer to the
leaf as lettuce.
2
Castros could present no evidence that it either knew or should have known of the
alleged dangerous condition, the lettuce on the floor.
The Castros responded to HEB’s motions and asserted that a genuine issue of
material fact existed regarding whether HEB had actual or constructive knowledge
of the lettuce on the floor. The Castros provided evidence in support of their
response, including photographs of the lettuce leaf, deposition testimony, and the
HEB incident report.
Following a hearing, the trial court granted HEB’s summary judgment
motions without stating the basis for its ruling, signing a final take-nothing judgment
in HEB’s favor. The Castros filed a timely motion for clarification and
reconsideration, arguing, as is relevant here, that they pleaded both a negligent
activity claim and a premises-defect claim, and that the negligent activity claim
should have survived summary judgment. The trial court denied the motion. This
appeal timely followed.
Issues
The Castros assert three issues on appeal. Several arguments in their brief,
however, lack clarity and do not appear in their summary judgment response. We
cannot reverse a summary judgment on grounds not raised in the summary judgment
response. Tex. R. Civ. P. 166a(c). Therefore, we will address the grounds the
Castros asserted in their summary judgment response and that, as best we can
discern, are briefed in our court.
Standard of Review
We review de novo a trial court’s decision to grant summary judgment.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam). We consider the evidence in the light most favorable to the non-movant,
3
indulging reasonable inferences and resolving doubts in the non-movant’s favor.
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We credit evidence
favorable to the non-movant if reasonable fact finders could, and we disregard
contrary evidence unless reasonable fact finders could not. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as here,
the trial court does not specify the grounds for its summary judgment, we must affirm
if any of the theories presented to the trial court and preserved for appellate review
are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
When a party files both traditional and no-evidence motions, we first review
the trial court’s decision under the no-evidence standard. See Tex. R. Civ. P. 166a(i);
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Cox v. H.E.B.
Grocery, L.P., No. 03-13-00714-CV, 2014 WL 4362884, at *2 (Tex. App.—Austin
Aug. 27, 2014, no pet.) (mem. op.). If we determine that the no-evidence summary
judgment was properly granted, we do not reach arguments under the traditional
motion for summary judgment. Merriman, 407 S.W.3d at 248; Ford Motor Co. v.
Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004).
In a no-evidence motion for summary judgment, the movant asserts that no
evidence supports one or more essential elements of the claims for which the non-
movant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The non-movant then must present
more than a scintilla of probative evidence that raises a genuine issue of material
fact supporting each element contested in the motion. See Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 & n.4 (Tex. 2002). A no-evidence motion should
be granted “when (a) there is a complete absence of evidence of a vital fact, (b) the
4
court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the
vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In a traditional motion, the movant must establish that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c). If the movant establishes its right to judgment as a matter
of law, the burden shifts to the nonmovant to raise a genuine issue of material fact
sufficient to defeat summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
In our discussion below, we review the trial court’s decision under the no-
evidence standard unless otherwise stated. See Tex. R. Civ. P. 166a(i); Merriman,
407 S.W.3d at 248.
Analysis
A. Theory of Liability
The Castros’ second issue is easily disposed, and we address it first. Their
second issue consists of two parts. First, the Castros assert that the trial court erred
in denying their motion to reconsider and dismissing their entire case because a
negligent-activity theory of recovery is applicable to this case, and their evidence
creates a genuine and material fact question on the elements of ordinary negligence.
They argue that Linda’s alleged injuries were proximately caused by HEB’s
“negligent loose-leaf-lettuce stocking activity,” which fits the “affirmative and
contemporaneous standard” applicable to negligent-activity cases. Second, the
Castros contend that res ipsa loquitur applies and supports a finding that the lettuce
would not have been on the floor but for HEB’s negligence.
5
When a summary judgment disposes of all claims but the movant did not
challenge all claims in the summary judgment motion, the non-movant may
complain on appeal that the judgment exceeds the relief requested in the motion.
See, e.g., Narnia Invs., Ltd. v. Harvestons Sec., Inc., No. 14-10-00244-CV, 2011 WL
3447611, at *3 (Tex. App.—Houston [14th Dist.] Aug. 9, 2011, no pet.) (mem. op.).
The Castros assert that they pleaded a negligent-activity theory of recovery, but that
HEB did not address that cause of action in its summary judgment motion.
The Castros allegations assert a cause of action for premises defect, not
negligent activity. Although negligent-activity and premises-defect theories both
fall within the scope of negligence, “negligent activity encompasses a malfeasance
theory based on affirmative, contemporaneous conduct by the owner that caused the
injury, while premises liability encompasses a nonfeasance theory based on the
owner’s failure to take measures to make the property safe.”2 Del Lago Partners,
Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). “A premises liability claim must
be either a premises[-]defect case or a negligent activity case.” Wal-Mart Stores,
Inc. v. Garza, 27 S.W.3d 64, 67 (Tex. App.—San Antonio 2000, pet. denied) (citing
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997)). If a
plaintiff alleges injury from a physical condition on the property but does not allege
injury as a result of some contemporaneous activity, then her claim is one for
premises defect. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 (Tex.
2017); Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—Texarkana
2010, no pet.) (allegation that owner created the condition on which plaintiff slipped
2
Del Lago uses the term “premises liability” to describe the nonfeasance-type theory.
Courts have also referred to that type of claim as a “premises defect” claim. See, e.g., Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997); Newman v. CenterPoint Energy
Houston Elec., LLC, No. 14-16-00007-CV, 2017 WL 2292577, at *7 (Tex. App.—Houston [14th
Dist.] May 25, 2017, no pet.) (mem. op.); Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex.
App.—San Antonio 2000, pet. denied). We use the terms interchangeably.
6
is not allegation of negligent activity because injury not contemporaneous with the
activity itself); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 526 (Tex. App.—
San Antonio 2003, no pet.) (same); Moore v. K Mart Corp., 981 S.W.2d 266, 269
n.1 (Tex. App.—San Antonio 1998, pet. denied) (allegation that employee created
depression in carpet by pushing cart was not negligent activity claim); see also H.E.
Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992). The Supreme Court
of Texas has consistently treated slip-and-fall cases as premises-defect causes of
action. United Scaffolding, 537 S.W.3d at 472.
Here, the Castros’ negligence claim arises from an allegation of nonfeasance
rather than any claim of malfeasance on HEB’s part. The Castros allege that this
lawsuit results from a slip-and-fall accident at HEB. They allege that Linda was an
invitee who was shopping in the produce section where an HEB employee was
organizing produce displays and had dropped pieces of wet lettuce. Linda alleges
she slipped on a piece of wet lettuce. They further allege that the lettuce on the floor
created an unreasonably dangerous condition, of which HEB knew or should have
known, and that HEB failed to correct or warn of the condition. Their petition
alleges that HEB was negligent in several respects, all of which pertain to HEB’s
alleged failure to exercise reasonable care to avoid a foreseeable risk of injury. 3 The
petition does not allege that Linda suffered injury as a contemporaneous result of
HEB’s activity or the malfeasance of an HEB employee. Thus, this is not a
negligent-activity case because Linda alleges she was injured when she tripped and
fell on an unreasonably dangerous lettuce leaf that had fallen on HEB’s floor, not as
3
For example, the Castros allege that HEB was negligent for failing to: (1) adequately
train or supervise “its employees in locating, preventing, reducing, eliminating, and warning about
unreasonably dangerous conditions”; (2) install or “ensure that all walkways are free of slipping
hazards”; (3) “create a safer path”; (4) “inspect the premises for dangerous conditions”; (5) make
latent defects safe or warn of latent defects; (6) adequately warn Linda of the dangerous condition;
or (7) make the condition reasonably safe.
7
a contemporaneous result of someone’s negligence. See Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992) (“Keetch may have been injured by a condition created
by the spraying but she was not injured by the activity of spraying.”); see also
Warner, 845 S.W.2d at 259 (holding that when injury alleged resulted from
condition of premises, the injured party alleged only premises liability claim); cf.
Garza, 27 S.W.3d at 67 (plaintiff injured by contemporaneous activity of employee
removing item from shelf).
In Blake v. Intco Investments of Texas, Inc., the appellant made the same
argument the Castros advance here. See 123 S.W.3d 521. There, the plaintiff alleged
she was injured by improperly installed carpet. See id. at 526. The trial court granted
a no-evidence summary judgment against the plaintiff, dismissing the entire case.
See id. On appeal, the plaintiff argued that summary judgment should not have been
granted on the whole case because the plaintiff amended her petition to assert a
negligent-activity claim. See id. The court disagreed and affirmed the summary
judgment because the petition did not allege injury as a result of contemporaneous
activity. Id. Similarly, based on the allegations in the Castros’ amended petition,
we conclude their only claim is for an alleged premises defect, not negligent activity.
Id.; see, e.g., United Scaffolding, 537 S.W.3d at 472; State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006); Keetch, 845 S.W.2d at 265); Warner, 845 S.W.2d at 259;
Brooks, 303 S.W.3d at 925; Lucas v. Titus Cty. Hosp. Dist., 964 S.W.2d 144, 153
(Tex. App.—Texarkana 1998, pet. denied); Moore, 981 S.W.2d at 269 n.1; see also
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 386 (Tex. 2016) (“[T]his court,
both within and outside of the Tort Claims Act, has consistently treated slip/trip-
and-fall cases as presenting claims for premises defects.”).
Next, the Castros assert that the res ipsa loquitur evidentiary rule applies here
and should have prevented the trial court’s take-nothing judgment against them. The
8
Castros did not raise res ipsa loquitur in their summary judgment response.
Moreover, this doctrine applies “only when (1) the character of the accident is such
that it would not ordinarily occur in the absence of negligence; and (2) the
instrumentality causing the injury is shown to have been under the management and
control of the defendant.” Haddock v. Arspiger, 793 S.W.2d 948, 950 (Tex. 1990).
The Castros submitted no evidence that the lettuce leaf would not have been on the
floor absent HEB’s negligence or that the lettuce leaf was under HEB’s exclusive
control. For example, a customer may have dropped the leaf on the floor. See, e.g.,
Lucas, 964 S.W.2d at 155-56 (holding res ipsa loquitur not applicable to injury from
chair kept in public area breaking when it could have been broken previously by
another member of public).
For these reasons, we overrule the Castros’ second issue. We thus turn to the
propriety of the summary judgment on the Castros’ premises-defect claim.
B. Actual or Constructive Notice
HEB owed Linda, “its invitee, a duty to exercise reasonable care to protect
her from dangerous conditions in the store that were known or reasonably
discoverable, but it was not an insurer of her safety.” Wal-Mart Stores, Inc. v. Reece,
81 S.W.3d 812, 814 (Tex. 2002) (citing Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998)). “To prevail, [the Castros] had to prove, among other
things, that [HEB] had actual or constructive notice of the [lettuce leaf]. Id. The
other elements of a premises-defect claim are not at issue here.
In their summary judgment response, the Castros asserted several arguments
why their evidence raised a fact question on the actual or constructive notice
element. First, they argued that the hazardous condition was the nature of the display
itself or the restocking “process,” and that HEB had actual knowledge of an
unreasonable danger because it designed and maintained the display and instituted
9
its process.4 They generally repeat this argument in their brief’s first issue, adding
that the “general harm that could arise based on HEB’s lettuce-stocking conduct” is
foreseeable and therefore is sufficient to defeat summary judgment even if there
exists no evidence that HEB had actual or constructive knowledge of this particular
lettuce leaf.
In support, the Castros cite Corbin v. Safeway Stores, Inc., 648 S.W.2d 292
(Tex. 1983). There, the court found some evidence that Safeway’s manner of
displaying grapes, accompanied by an absence of mats on the linoleum tile floor,
posed an unusually high risk of customer falls from grapes dropped on the floor, and
held that a jury could find the risk unreasonable. Id. at 297. The Supreme Court’s
holding in Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006), however,
forecloses the Castros’ contention. The plaintiff in Brookshire Grocery slipped and
fell on a piece of partially melted ice near a self-service soft drink dispenser. Id. at
407. The plaintiff argued the manner in which the dispenser was set up created an
unreasonably dangerous condition. Id. Rejecting that argument, the court referred
to Corbin as an exceptional case, distinguished from similar cases by Safeway’s
admission there was an unusually high risk associated with its grape display. Id. at
408. The court explained that ordinarily an unreasonably dangerous condition for
which a premises owner may be liable is the condition at the time and place injury
occurs, not some antecedent situation that produced the condition, id. at 407, and
went on to hold that the only unreasonably dangerous condition shown by the
evidence was the ice on the floor. Id. at 409. The same is true here: the alleged
dangerous condition here is the lettuce leaf on the floor, not some antecedent
situation such as the lettuce display. See id. at 408. The Castros presented no
4
The Castros did not plead this theory in their amended petition, in which they alleged
only that the lettuce leaf was the dangerous condition.
10
evidence that HEB admitted an “unusually high risk” was associated with its produce
display, as was the case in Corbin. Moreover, the place where Linda slipped was
not in front of the part of the produce display housing lettuce.
To the extent the Castros rely on HEB’s “restocking process” or policies,
those matters are relevant to the reasonable care element of their claim. See id. The
element HEB put into issue by its summary judgment motion was actual or
constructive notice.
Next, the Castros argued in their summary judgment response that Debatista
likely saw the lettuce leaf on the floor and therefore actually knew of its presence
before the accident. In support of this argument, they cited evidence that Debatista
was stocking lettuce at the time Linda fell, that he was in close proximity to the place
where Linda fell,5 and that he saw the lettuce leaf on the floor after she fell.
Actual knowledge requires subjective awareness that the danger existed at the
time of the accident. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 568 (Tex.
2016); City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (per curiam);
Univ. of Tex. at Austin v. Sampson, 488 S.W.3d 332, 339-40 (Tex. App.—Austin
2014), aff’d by 500 S.W.3d 380 (Tex. 2016); Am. Indus. Life Ins. Co. v. Ruvalcaba,
64 S.W.3d 126, 142 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). A
premises owner’s actual knowledge may be shown by evidence that the landowner
received reports of the danger presented by the particular condition. See Univ. of
Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008); Sampson, 488 S.W.3d
at 340; Taylor v. Louis, 349 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.]
2001, no pet.). It also can be established by circumstantial evidence that directly or
by reasonable inference supports the conclusion that the landowner was actually
5
The Castros contended Debatista was four to fifteen feet away from the spot where Linda
fell.
11
aware of a dangerous premises condition. Ineos USA, LLC, 505 S.W.3d at 568;
Taylor, 349 S.W.3d at 734.
The facts appellants cite are not sufficient to defeat summary judgment on the
actual notice element. Linda acknowledged in her deposition that she had no
evidence that anyone at HEB knew the lettuce was on the floor before the accident,
and the Castros filed no direct evidence of HEB’s actual knowledge with their
response. There exists no evidence that the lettuce leaf’s presence on the floor was
reported to HEB before the accident. That Debatista was stocking lettuce in relative
proximity to the place where Linda fell does not establish directly or by reasonable
inference HEB’s subjective awareness that the lettuce was on the floor. As the Texas
Supreme Court has recently reiterated, “without evidence showing how long the
allegedly [dangerous condition] existed, ‘the proximity of the employees is no
evidence of actual knowledge.’” Sampson, 500 S.W.3d at 395 (quoting City of
Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006); Reece, 81 S.W.3d at 816).
We reached a similar conclusion in Alonso v. Westin Homes Corp., No. 14-15-
00898-CV, 2016 WL 7234474, at *3-4 (Tex. App.—Houston [14th Dist.] Dec. 13,
2016, no pet.) (mem. op.) (concluding that person’s presence on jobsite supported
merely possible knowledge of dangerous condition; evidence did not permit
inference of actual awareness). Given the evidence, the Castros’ suggestion that
Debatista “likely” saw the lettuce based on his activity and proximity to the place
where Linda fell is nothing more than speculation, which cannot defeat a summary
judgment on actual knowledge. See, e.g., Univ. of Tex. at Austin v. Bellinghausen,
No. 03-14-00749-CV, 2016 WL 462735, at *6 (Tex. App.—Austin Feb. 3, 2016, no
pet.) (mem. op.); Univ. of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5-6 (Tex. App.—
El Paso 2009, no pet.); Sova v. Bill Miller Bar-B-Q Enters., Ltd., No. 03-04-00679-
CV, 2006 WL 1788231, at *3-4 (Tex. App.—Austin June 30, 2006, no pet.) (mem.
12
op.). Similarly, that Debatista saw the lettuce leaf after Linda fell constitutes no
evidence that he saw it before she fell.
To the extent the Castros intend to intimate on appeal that Debatista’s lettuce-
stocking activity nearby supports an inference that he created the condition, from
which a jury could then infer actual knowledge, the Castros did not raise that
argument in their summary judgment response. Further, actual knowledge cannot
be established by stacking one inference upon another. See Ruvalcaba, 64 S.W.3d
at 142; see also Alarcon v. Alcolac Inc., 488 S.W.3d 813, 827 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied) (“[I]nferences stacked only on other inferences are
not legally sufficient evidence.”). The Castros did not contend in their response that
Debatista had actual knowledge of the lettuce leaf because he dropped it on the floor
or caused it to be there.
The Castros cited no authority to support their actual notice argument in their
summary judgment response, but on appeal they direct us to Keetch and Coffee.
Keetch, 845 S.W.2d at 262; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex.
1976). Neither case supports their position. In Keetch, the issue was whether a court
was required to conclude as a matter of law that knowledge existed based solely on
the fact that a Kroger employee created the slippery spot on the floor. Keetch, 845
S.W.2d at 265-66. The Keetch court answered this question in the negative:
inferring knowledge as a matter of law is improper unless knowledge is
uncontroverted. Id. There, Kroger denied knowledge of the condition, so the
inference of knowledge could not be made as a matter of law. Id. Here, the Castros
did not assert that Debatista caused the lettuce to be on the floor and presented no
evidence of how it fell to the floor. Thus, Keetch does not support the argument that
HEB had actual knowledge of the lettuce leaf.
13
In Coffee, the plaintiff was injured when she tripped over an empty display
pallet on the Woolworth floor. Coffee, 536 S.W.2d at 540. The jury found, as is
relevant here, that Woolworth (1) created the dangerous condition and (2) knew or
should have known of it. Id. The Supreme Court of Texas reinstated a jury verdict.
Relevant to the actual notice issue, the court held that the jury could have found that
Woolworth had actual knowledge of the dangerous condition because store
employees were actually working on the display stand in question. See id. at 540-
41. Again, here, Linda did not injure herself on the display. And the Castros did
not assert that Debatista caused the lettuce leaf to be on the floor, nor is there any
temporal evidence to show how long the leaf had been on the floor. Thus, Coffee
does not support the Castros’ actual notice argument.
We conclude that Debatista’s mere activity of stocking lettuce in proximity to
the lettuce leaf on the floor does not create a genuine issue of material fact that the
Debatista or HEB actually knew the lettuce was there before the accident.
The Castros’ final argument in their summary judgment response pertained to
the constructive notice issue. Acknowledging that Debatistas’ relatively close
proximity to Linda’s fall is not sufficient to create a fact question on constructive
notice, see Reece, 81 S.W.3d at 816-17,6 they contended that sufficient temporal
evidence existed to show that the lettuce was on the floor long enough that HEB
should have discovered it and either corrected it or warned Linda about it.
6
In Reece, the Supreme Court of Texas “unanimously held that the mere proximity of an
employee to a spill, without evidence of when or how it came to be on the floor, was legally
insufficient to charge a premises owner with constructive notice of the hazard.” Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006) (citing Reece, 81 S.W.3d at 816-17). This is
because “[a]n employee’s proximity to a hazard, with no evidence indicating how long the hazard
was there, merely indicates 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.
14
In determining whether legally sufficient evidence of constructive notice
exists, courts typically analyze the combination of proximity, conspicuousness, and
longevity of the dangerous condition. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d
566, 567-68 (Tex. 2006) (per curiam) (citing Reece, 81 S.W.3d at 816). Temporal
evidence is critical to this inquiry. See Reece, 81 S.W.3d at 815-16. The so-called
“‘time-notice rule’ is based on the premise that temporal evidence best indicates
whether the owner had a reasonable opportunity to discover and remedy a dangerous
condition.” 7 Id. “Without some temporal evidence, there is no basis upon which
the factfinder can reasonably assess the opportunity the premises owner had to
discover the dangerous condition.” Id. at 816. Although proximity and
conspicuousness may affect a factfinder’s assessment of how much time is
reasonable for a premises owner to discover a particular dangerous condition, “there
must be some proof of how long the hazard was there before liability can be imposed
on the premises owner for failing to discover and rectify, or warn of, the dangerous
condition.” Id.
The Castros had to present evidence that the lettuce leaf was on the floor for
a sufficient period of time that HEB had a reasonable opportunity to discover it. See
Reece, 81 S.W.3d at 816; see also Cox, 2014 WL 4362884, at *2. Although
Debatista’s proximity to Linda’s fall may have shortened the time needed to show
HEB’s constructive knowledge, there still must have been some evidence of how
long the lettuce leaf was on the floor before HEB could be charged with constructive
knowledge of the alleged dangerous condition. See Reece, 81 S.W.3d at 816.
7
This rule, “firmly rooted in our jurisprudence,” arises because it would be unjust to hold
a premises owner liable for the carelessness of a person the owner does not control, unless the
owner first had a reasonable opportunity to discover that the dangerous condition existed. Reece,
81 S.W.3d at 815 (citing F.W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 832 (Tex. Civ. App.—
Amarillo 1941, writ ref’d w.o.m.); Lone Star Gas Co. v. Ballard, 138 S.W.2d 633, 634-35 (Tex.
Civ. App.—Fort Worth 1940, writ ref’d)).
15
The Castros attempted to meet this burden by relying on evidence that the
lettuce was “wilted,” and that the pictures of the “wilted and trampled” piece of
lettuce “clearly indicate that Ms. Castro wasn’t the first to walk over the lettuce.”
Gonzalez forecloses this argument. There, the plaintiff made similar arguments
about the condition of spilled macaroni salad on the floor. See Gonzalez, 968 S.W.2d
at 936. In an effort to show that the macaroni salad had been on the floor for a
prolonged period of time, Gonzalez testified that it was very dirty, and Gonzalez’s
daughter testified that it had footprints and cart tracks in it, indicating it had been
there for some period of time. See id. In rendering judgment for Wal-Mart, however,
the Supreme Court of Texas held that the circumstantial evidence supported “only
the possibility that the dangerous condition existed long enough to give Wal-Mart a
reasonable opportunity to discover it.” See id. at 936, 938 (“We hold that the
evidence that the macaroni salad had ‘a lot of dirt’ and tracks through it and the
subjective testimony that the macaroni salad ‘seemed like it had been there awhile’
is no evidence that the macaroni had been on the floor long enough to charge Wal-
Mart with constructive notice of this condition.”).
The Third Court of Appeals, from which this case has been transferred to our
court,8 has consistently held that similar evidence does not create a fact issue
sufficient to defeat summary judgment on the issue of constructive notice. See
Molina v. HEB Grocery Co., L.P., No. 03-17-00343-CV, 2017 WL 4766655, at *3-
4 (Tex. App.—Austin Oct. 19, 2017, no pet) (mem. op.); Fontenette-Mitchell v.
Cinemark USA, Inc., No. 03-16-00201-CV, 2016 WL 6833104, at *3-4 (Tex.
App.—Austin Nov. 16, 2016, no pet.) (mem. op.); Cox, 2014 WL 4362884, at *3-4;
Sova, 2006 WL 1788231, at *3-4. In each of these cases, the Austin Court of
8
The Supreme Court of Texas transferred this case to our court form the Third Court of
Appeals. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court of
Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
16
Appeals explained that the facts were similar to Reece “in that there is no evidence
of when the spill occurred and no evidence that would allow an inference that [the
defendant] had a reasonable opportunity to discover and clear up the spill.” Molina,
2017 WL 4766655, at *4; see also Fontenette-Mitchell, 2016 WL 6833104, at *3;
Cox, 2014 WL 4362884, at *3; Sova, 2006 WL 1788231, at *3.
Similarly, in the present case, no one could explain how the lettuce leaf fell to
the floor, nor could anyone provide any information regarding how long the leaf had
been on the floor before Linda slipped on it. This case falls squarely within Gonzalez
and its progeny, and the Castros’ evidence allows no reasonable inference that HEB
had a reasonable opportunity to discover the lettuce and either correct or warn of the
condition. See Spates, 186 S.W.3d at 567-68; Reece, 81 S.W.3d at 817; Gonzalez,
968 S.W.2d at 937-38; Molina, 2017 WL 4766655, at *4; Fontenette-Mitchell, 2016
WL 6833104, at *3; Cox, 2014 WL 4362884, at *3; Sova, 2006 WL 1788231, at *3.
The remaining arguments in the Castros’ brief exceed what they raised in their
summary judgment response, so we do not address them. See Tex. R. Civ. P. 166a(c)
(“Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.”).
For the foregoing reasons, the Castros failed to raise a fact issue in response
to HEB’s no-evidence summary judgment motion on the premises-defect element of
actual or constructive notice. Accordingly, we overrule the Castros’ first and third
issues.
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Conclusion
Having overruled the Castros’ issues, we affirm the trial court’s judgment in
HEB’s favor.
/s/ Kevin Jewell
Justice
Panel consists of Justices Christopher, Jewell, and Bourliot.
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