Ellen Sedita v. Royal Sweeping and Paving, LLC

Opinion issued July 9, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00702-CV
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ELLEN SEDITA, Appellant
V.
ROYAL SWEEPING AND PAVING, LLC, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 1048586
MEMORANDUM OPINION
Appellant, Ellen Sedita, challenges the trial court’s rendition of summary
judgment in favor of appellee, Royal Sweeping and Paving, L.L.C. (“Royal
Sweeping”), in her suit against Royal Sweeping and others for negligence,
negligent activity, and premises liability. In two issues, Sedita contends that the
trial court erred in granting Royal Sweeping summary judgment on her negligence
and premises-liability claims.
Background
In her second amended petition, Sedita alleged that she was injured on the
morning of March 8, 2010 in the parking garage of One Riverway Plaza. Sedita
had parked her car in the garage at 7:15 a.m., and when she walked back to her car
to retrieve an item, she “slipped on loose gravel and debris and fell onto the
ground.” Sedita described the debris as “pea-gravelly-type stuff, little debris . . .
little twigs,” which she did not see until she got up after falling.
The property management company for One Riverway Plaza, Unilev
Management Corporation (“Unilev”), hired Merit Parking Company, Ltd.
(“Merit”) to manage and maintain the parking garage area. Merit in turn hired
Royal Sweeping to sweep and vacuum the garage twice a month. Royal Sweeping
had been in the parking garage between 1:00 and 4:00 p.m. on March 7, 2010, the
day before Sedita fell, to sweep and vacuum the garage. Kevin Kupfer, Royal
Sweeping’s CEO explained that a two-man crew would sweep and vacuum the
garage. After a helper with a backpack blower blew trash and debris into the
driving lane of the garage, a truck driver would stop mid-way down the garage and
use the truck to vacuum upon the blown debris. Although it was noted in the
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March 7, 2010 work order that it had been “windy,” there was no notation of
excessive debris as would sometimes be stated on work orders.
Sedita sued Unilev, Unilev Capital Corporation, Merit, and Royal Sweeping
for negligence, negligent activity, and premises liability. In her petition, Sedita
alleged that she was a business invitee at One Riverway Plaza; she had entered the
garage with the “Defendants’ consent”; the “loose gravel and debris on
Defendants’ premises posed an unreasonable risk of harm”; and “Defendants knew
or should have known about the dangerous condition,” “owed [her] a duty to
exercise reasonable care in maintaining the condition of the premises,” “breached
the duty of ordinary care to protect [her] from damage by both failing to
adequately warn [her] of the condition and failing to make the condition
reasonably safe,” “had a duty to properly maintain the garage in question,” and
“breached that duty by leaving loose gravel debris in the garage that caused [her]
to fall.” She further alleged that “Defendants breach of the[ir] duty proximately
caused [her] injuries” and their “actions constitute[d] negligence and negligent
activity.”
Royal Sweeping filed a no-evidence summary-judgment motion on Sedita’s
claims for negligence, negligent activity, 1 and premises liability. It also asserted
that, as a matter of law, it was entitled to summary judgment on her premises-
1
Sedita does not appeal the trial court’s rendition of summary judgment in favor of
Royal Sweeping on her negligent-activity claim.
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liability claim. The trial court granted the combined motion in its entirety without
stating the reasons for its ruling.
Standard of Review
We review a trial court’s grant of a summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If a trial court grants
a summary judgment without specifying the grounds for the grant, we must uphold
the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch
Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request
under the matter-of-law standard. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.
2004). When a party has filed both a matter-of-law and no-evidence summary-
judgment motion and the trial court’s order does not specify the grounds for the
grant of the motion, we first review the propriety of the summary judgment under
the no-evidence standard. See TEX. R. CIV. P. 166a(i); see Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence standard is met,
we need not reach the arguments made under the matter-of-law standard. See Ford
Motor, 135 S.W.3d at 600.
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To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.
In regard to a matter-of-law summary-judgment motion, the movant has the
burden to show that no genuine issue of material fact exists and the trial court
should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A
defendant moving for summary judgment as a matter of law must conclusively
negate at least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). The motion must state the specific
grounds relied upon for summary judgment. TEX. R. CIV. P. 166a(c). When
reviewing a summary-judgment motion, we take as true all evidence favorable to
the nonmovant, indulging every reasonable inference and resolving any doubts in
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the nonmovant’s favor. Valence Operating, 164 S.W.3d at 661; Provident Life
Accid. Ins., 128 S.W.3d at 215.
Summary Judgment
In her first and second issues, Sedita argues that the trial court erred in
granting Royal Sweeping’s summary-judgment motion on her claim for negligence
and premises liability because she “produced sufficient evidence to raise genuine
issues of material fact about whether Royal Sweeping had sufficient control over
the premises and created a hazardous condition in the parking garage.”
Negligence
In its no evidence summary-judgment motion, Royal Sweeping asserted that
Sedita produced no evidence that it (1) owed her a duty at the time of the incident
as it had no control over the premises; (2) had breached any duty or created a
“dangerous condition” as there is no evidence as to where the gravel came from or
how long it had been there; and (3) proximately caused Sedita to fall on gravel and
suffer injuries.
In her response to Royal Sweeping’s summary-judgment motion, Sedita
attached her deposition testimony and that of Shelia Stulak, senior property
manager for Unilev, Chris Figg, facility manager for Merit, and Kevin Kupfer,
Royal Sweeping’s CEO.
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Citing deposition testimony, Sedita generally asserts that “Royal Sweeping
admitted to having many duties when cleaning the garage,” it should have cleaned
the area where she fell, “it was Royal’s job to clear any debris from there,” Royal
Sweeping admitted that leaving debris “would be a breach of duty,” and “Royal
had a duty to do its job in a good and workmanlike manner.”
Sedita further asserts that there is more than a scintilla of evidence that
Royal Sweeping left debris behind on March 7, 2010 when it swept the parking
garage. She based the assertion on a statement that Figg had made to her about the
debris “possibly coming from a Royal Sweeping truck”; the “period,” described by
Kupfer, between the time when debris is blown and when vacuumed upon by the
truck; and the notation on Royal Sweeping’s work order that it was “windy” on
March 7, 2010. And Sedita argues that Kupfer’s testimony that the company does
sometime receive calls from customers to come back and clean up missed debris
provides more than a scintilla of evidence that Royal Sweeping left debris behind
on March 7, 2010, the day before she fell. Sedita also asserts that it is undisputed
that the debris caused her to fall and be injured. 2
2
On appeal, Royal Sweeping argues that it is disputed that the debris caused Sedita
to fall because she was the only person present and the only person who saw the
pebble debris on the ground. Figg testified that he did not see the gravel when
Sedita showed him where she fell, he wrote down only what she stated caused her
to fall, and, later, when he and Sedita examined the area, she did not see debris and
said that maybe she had kicked it away. Later, Sedita gave him a “rock” and said
that maybe “it” was the rock that made her fall.
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Royal Sweeping argues that Sedita’s testimony that Figg had told her that
the debris had “possibly come from a Royal Sweeping truck” is hearsay and
contradicted by Figg’s own testimony. In his deposition, Figg testified that he did
not originally think that the debris could have been left by a Royal Sweeping truck.
He explained, “I mentioned it might be a possibility when she asked if it was
swept, and that – that was the extent.” Figg told Sedita that “they [sweep] twice a
month” and they had come the day before her fall. Figg did not see the gravel that
Sedita claims caused her to fall in the area that was seven feet in front of his office
door and ten feet from a vehicle entrance. In fact, he did not see any gravel or
debris left behind by Royal Sweeping, and he did not call Royal Sweeping to
report debris left behind after a sweeping. Figg also testified that the complained-
of gravel could have been brought in on the tires of the cars driving in the garage,
but he “had no idea where any of the alleged debris came from.”
To establish negligence, a plaintiff must establish a duty, a breach of that
duty, and damages proximately caused by the breach. Kroger Co. v. Elwood, 197
S.W.3d 793, 794 (Tex. 2006); Greater Houston Transp. Co. v. Phillips, 801
S.W.2d 523, 525 (Tex. 1990).
Here, Sedita has not met her burden of presenting evidence to raise a
genuine issue of material fact on the challenged element of breach of duty as
specified in Royal Sweeping’s no-evidence summary-judgment motion. Assuming
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that Royal Sweeping owed the duty of a reasonably prudent sweeping and
vacuuming crew, Sedita has not produced evidence that Royal Sweeping breached
its duty by leaving behind the debris upon which she claims to have fallen.
Although she established that Royal Sweeping was on the premises fourteen to
sixteen hours before she fell, Sedita presented no evidence about the debris other
than her own testimony that it was “pea-gravelly-type stuff, little debris . . . little
twigs” that even she did not see until after she got up from her fall. Figg testified
that he did not see the debris and simply recorded on his incident report what
Sedita had told him. Sedita produced no evidence that Royal Sweeping’s vacuum
truck drove near where the debris was found. And there is no evidence of how
long the gravel might have been present in the area. Although there is some
evidence of several “possibilities” of the source of the gravel, Sedita’s evidence at
best creates “a mere surmise or suspicion that the challenged fact exists.” See
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
S.W.3d 106, 115 (Tex. 2009) (quoting Kroger Tex., P.P. v. Suberu, 216 S.W.3d
788, 793 (Tex. 2006)). Accordingly, we hold that the trial court did not err in
granting Royal Sweeping’s no-evidence summary-judgment motion on Sedita’s
claim for negligence.
We overrule Sedita’s first issue.
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Premises Liability
In its no-evidence summary-judgment motion, Royal Sweeping asserted that
Sedita presented no evidence that: (1) it was a possessor of the premises; (2) the
condition posed an unreasonable risk of harm; (3) it knew or reasonably should
have known of the danger; or (4) it breached its duty of ordinary care by failing to
adequately warn Sedita or failing to make the condition reasonably safe. In its
matter-of-law summary-judgment motion, Royal Sweeping asserted that: (1) Sedita
has not shown as a matter of law that it had control of the premises where the
injury occurred; (2) even if Royal Sweeping created a dangerous condition, other
parties retained control over the premises during and after it performed work on the
premises, making the premises owner, not Royal Sweeping, responsible to any
third-party invitee for injury caused by its work as an independent contractor; and
(3) Royal Sweeping had no knowledge of any debris, pebbles, or gravel on the
property that would require it to warn or make safe such condition.
In her response to Royal Sweeping’s summary-judgment motion, Sedita
argued that there is summary-judgment evidence to meet each element of her
premises-liability claim and she produced sufficient evidence to raise a genuine
issue of material fact “about whether Royal Sweeping had sufficient control over
the premises and created a hazardous condition in the parking garage where Sedita
worked.” Sedita pointed to the deposition testimony of Figg and Stulak, asserting
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that the “[d]efendants have admitted that loss gravel and debris in a walkway of a
garage poses an unreasonable risk of harm” and there is evidence that Royal
Sweeping had “placed this debris in the garage.”
Premises liability is a special form of negligence in which the duty owed to
the plaintiff depends on the plaintiff’s status on the premises at the time the
incident occurs. Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex.
2010); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A plaintiff is
usually classified as an invitee, licensee, or trespasser. Mellon Mortg. Co. v.
Holder, 5 S.W.3d 654, 655 (Tex. 1999). “An invitee is ‘one who enters on
another’s land with the owner’s knowledge and for the mutual benefit of both.’”
American Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied) (quoting Rosas v. Buddie’s Food Store,
518 S.W.2d 534, 536 (Tex. 1975)); see also RESTATEMENT (SECOND) OF TORTS
§ 332 (1965). The parties do not dispute that Sedita was a business invitee.
Premises owners and operators owe a duty to keep premises safe for invitees
against conditions on the property that pose unreasonable risks of harm. Brinson
Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007); Wal–Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, does not make
the premises owner or operator an “insurer” of the invitee’s safety. See, e.g.,
Gonzalez, 968 S.W.2d at 936.
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To prevail as an invitee plaintiff, Sedita had to prove: (1) actual or
constructive knowledge of some condition on the premises by the owner/operator;
(2) the condition posed an unreasonable risk of harm; (3) the owner/operator did
not exercise reasonable care to reduce or eliminate the risk; and (4) the
owner/operator’s failure to use such care proximately caused the plaintiff’s
injuries. Id. (citing Keetch, 845 S.W.2d at 264).
To establish that Royal Sweeping had actual or constructive knowledge of
the gravel and twigs in the parking garage, Sedita had to prove that Royal
Sweeping: (1) placed the substance in the garage; (2) actually knew that the
substance was in the garage; 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).
Sedita asserts that there is summary-judgment evidence that Royal Sweeping
left the debris behind on March 7, 2010 when it swept the parking garage. In
support, she again points to her testimony that Figg told her that the debris
“possibly came from a Royal Sweeping truck,” the “period,” described by Kupfer,
between the time when debris is blown and when vacuumed upon by the truck, and
the notation on Royal Sweeping’s work order that it was “windy” on March 7,
2010. And Sedita again argues that Kupfer’s testimony that Royal Sweeping has
sometimes received calls from customers to come back and clean up missed debris
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provides more than a scintilla of evidence that it left the debris behind on March 7,
2010, the day before she fell.
Sedita presented no evidence that Royal Sweeping placed the debris on the
floor of the garage or had actual or constructive knowledge of the debris. Figg
testified that he did not see the debris on which Sedita claims to have fallen, and he
had earlier walked by the area, which is near his office door. Thus, even the
property management company on site that morning was unaware of any
dangerous condition. And Sedita presented no evidence that Royal Sweeping had
been contacted by anyone at the property management company or that the driver
and helper were aware there was debris remaining that they needed to clean up.
And approximately fourteen to sixteen hours passed from the time that Royal
Sweeping swept the garage to the time of Sedita’s fall. Sedita did not meet her
burden of presenting evidence to raise a genuine issue of material fact on the
challenged element of actual or constructive knowledge of a condition on the
premises. Accordingly, we hold that the trial court did not err in granting Royal
Sweeping’s no-evidence summary-judgment motion on Sedita’s claim for premises
liability.
We overrule Sedita’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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