Calvin Blake v. Sybarite Pubs, LLC D/B/A Public House Heights

Reversed and Remanded and Memorandum Opinion filed April 6, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00293-CV
CALVIN BLAKE, Appellant
V.
SYBARITE PUBS, LLC D/B/A PUBLIC HOUSE HEIGHTS, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2019-86056
MEMORANDUM OPINION
Although several questions are presented in this appeal from a summary
judgment, we only consider one of them: whether the movant satisfied its burden of
conclusively negating at least one essential element of the nonmovant’s claim for
premises liability. Because we have determined that the movant did not satisfy that
burden, we reverse the trial court’s judgment and remand the case to that court for
additional proceedings.
BACKGROUND
Calvin Blake went to steak night at a neighborhood pub controlled by Sybarite
Pubs LLC d/b/a Public House Heights (the “Pub”). He sat down in a plastic chair
and placed an order. As he was waiting for his meal, one of the legs on his chair
broke without warning and he fell to the ground.
Blake sued the Pub under a theory of premises liability, alleging that the Pub
had failed to discover, correct, and warn of the chair’s dangerous condition. The Pub
moved for summary judgment on traditional grounds only by seeking to negate two
elements of Blake’s cause of action. Blake filed a response, but the trial court granted
the Pub’s motion.
ANALYSIS
There is no dispute that Blake was the Pub’s invitee. Thus, for Blake to prevail
on his claim of premises liability, he was required to prove the following essential
elements: (1) the Pub had actual or constructive knowledge of the condition at issue;
(2) the condition was unreasonably dangerous; (3) the Pub did not exercise
reasonable care to reduce or eliminate the unreasonable risk of harm; and (4) the
Pub’s failure to reduce or eliminate the unreasonable risk of harm proximately
caused his injuries. See United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 802
n.4 (Tex. 2022) (per curiam).
As the movant for a traditional summary judgment, the Pub assumed the
burden of conclusively negating at least one of these four essential elements. See
Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (per curiam). The Pub focused
on just the first two elements in its motion for summary judgment. Because the trial
court granted that motion without specifying which element the Pub had
conclusively negated, the ruling can be supported if the Pub established that it was
2
entitled to judgment as a matter of law on either of the two grounds presented. See
Tex. R. Civ. P. 166a(c). However, if neither ground in the Pub’s motion is legally
sufficient, or if there is a genuine issue of material fact, then we must conclude that
the trial court committed error by granting the motion.
We begin in reverse order by considering the second element of a premises
liability claim because that is how the Pub structured its motion for summary
judgment. Our review is de novo. See Katy Venture, Ltd. v. Cremona Bistro Corp.,
469 S.W.3d 160, 163 (Tex. 2015) (per curiam).
I. The Pub did not conclusively negate the existence of an unreasonably
dangerous condition.
A condition is unreasonably dangerous if it presents an unreasonable risk of
harm. See Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per
curiam). And a condition presents an unreasonable risk of harm if “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.” See County of
Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).
Several factors are considered when deciding whether a condition is
unreasonably dangerous, including whether the condition was clearly marked,
whether it had previously caused injuries or generated complaints, whether it
substantially differed from conditions in the same class of objects, whether it met
applicable safety standards, and whether it was naturally occurring. See Christ v.
Tex. Dep’t of Transp., — S.W.3d —, 2023 WL 1871560, at *3 (Tex. Feb. 10, 2023).
These factors mean that the unreasonable dangerousness of a condition “is ordinarily
a fact question.” Id. However, certain innocuous or commonplace hazards are not
unreasonably dangerous as a matter of law, particularly when they have not caused
other injuries or been the subject of complaints. Id.3
The Pub argued that the chair involved in this case was not unreasonably
dangerous as a matter of law because it was not visibly defective. In support of this
argument, the Pub referred to Blake’s discovery responses and deposition testimony,
in which he said that he did not notice a break in the chair when he first sat down in
it, and that the chair performed as expected for some length of time until one of its
legs broke without warning. The Pub also referred to the deposition testimony of one
of its waitresses, who said that she inspected all of the chairs on the day before
Blake’s injury, and she did not detect any problems with any of the chairs.
But elsewhere in the Pub’s motion, there was evidence that the same type of
chair had broken and resulted in injury to another invitee. That prior incident creates
a fact issue to consider in deciding whether the chair was unreasonably dangerous.
The Pub still argued that the chair was not unreasonably dangerous because
the invitee in that prior incident had been misusing the chair by leaning back in it,
such that the front two legs were elevated off the ground. The Pub further argued
that Blake had been misusing his chair too, because according to the Pub’s chef,
Blake had also been leaning back in his chair at the time that it broke. We need not
determine whether this evidence would conclusively negate the existence of an
unreasonably dangerous condition, because even if we assumed that the burden had
shifted from the Pub to Blake, there was controverting testimony in Blake’s response
that he had not been leaning back in his chair, and we must credit that testimony
because Blake is the nonmovant. See City of Keller v. Wilson, 168 S.W.3d 802, 824
(Tex. 2005) (“A reviewing court must examine the entire record in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any
doubts against the motion.”).
In light of this fact issue, the Pub did not prove that it was entitled to judgment
as a matter of law.
4
II. The Pub did not conclusively negate its actual and constructive
knowledge of the condition.
Even though the Pub did not conclusively negate the existence of an
unreasonably dangerous condition, the Pub could still be entitled to summary
judgment if it negated both its actual and constructive knowledge of the condition.
See Vernon v. Dall./Fort Worth Int’l Airport Bd., No. 02-16-00488-CV, at *2–3
(Tex. App.—Fort Worth July 13, 2017, no pet.) (mem. op.) (holding that a movant
for a traditional summary judgment had negated both its actual and constructive
knowledge of a condition). We begin by addressing the Pub’s actual knowledge.
Actual knowledge requires the premises owner to know “that the dangerous
condition existed at the time of the accident.” See Univ. of Tex. at Austin v. Hayes,
327 S.W.3d 113, 117 (Tex. 2010) (per curiam). Accordingly, for the Pub to establish
that it lacked actual knowledge, the Pub was required to conclusively show that it
did not know about the dangerous condition at the time of Blake’s injury. In other
words, the Pub had the burden of proving a negative.
Premises owners in other cases have satisfied this burden by producing
evidence that they had not received any reports of potential danger presented by the
condition, or any reports of prior injuries. See, e.g., Univ. of Tex.-Pan Am. v. Aguilar,
251 S.W.3d 511, 513 (Tex. 2008) (per curiam) (“Here, the University’s Director of
Health and Safety testified that there had been no incidents of pedestrians tripping
on water hoses on the campus in the past five years. Additionally, the Assistant
Director for Facilities, Operations and Maintenance testified that there were no rules
or guidelines for the use and placement of water hoses because they had never been
a problem on campus.”); City of Houston v. Ayala, 628 S.W.3d 615, 622 (Tex.
App.—Houston [14th Dist.] 2021, no pet.) (“The supervisor attested that he
reviewed the records and reports in ASOCS for the thirty days before and the thirty
5
days after Ayala’s slip-and-fall incident and he found ‘no records or reports
concerning notice of a dangerous condition, including water or other liquid or
foreign substance, or of any person slipping and falling or of any incidents, on any
escalator,’ except for the record of Ayala’s incident, which was received after its
occurrence.”).
The Pub did not produce any evidence along these lines. For instance, there
was no affidavit testimony affirmatively stating that the Pub had not received any
reports of potential dangers or injuries presented by Blake’s chair.
In lieu of such evidence, the Pub argued in its motion that it lacked actual
knowledge because Blake had been misusing his chair. The Pub did not explain how
Blake’s alleged misuse would impact the Pub’s actual knowledge of an unreasonably
dangerous condition. In any event, the Pub would not be entitled to summary
judgment on this point because there was a fact issue as to whether Blake had been
misusing the chair.
In one final point, the Pub argues for the first time in its brief that it negated
its actual knowledge because it also produced evidence from a waitress who said
that she did not detect any defects in the chairs when she inspected them on the day
before Blake’s injury. But the critical inquiry is whether the Pub lacked actual
knowledge of the dangerous condition “at the time of the accident”—not on the day
“before.” See Hayes, 327 S.W.3d at 117.
The waitress’s testimony might have supported a conclusion that the Pub
lacked actual knowledge of the dangerous condition at the critical time of Blake’s
injury if there was some additional testimony that the circumstances had not changed
since the inspection on the day before—for example, testimony that Blake was the
first person to use the chair since the inspection; or, if other invitees had used the
chair, testimony that the Pub was not aware of any damage before Blake used it.
6
However, there was no evidence to that effect. Absent such evidence, we cannot say
that the Pub conclusively negated its actual knowledge of the dangerous condition.
See Parks v. Steak & Ale of Tex., Inc., No. 01-04-00080-CV, 2006 WL 66428, at *3
(Tex. App.—Houston [1st Dist.] Jan. 12, 2006, pet. denied) (mem. op.) (recognizing
that chairs in restaurants are “undoubtedly used by many people each day” and that
any one of those invitees could have broken or damaged a chair).
Because the Pub did not conclusively establish that it lacked actual knowledge
of the dangerous condition, we need not consider whether it also negated its
constructive knowledge of the dangerous condition.
We conclude that the trial court erred by granting the Pub’s motion, and that
the error probably led to the rendition of an improper judgment. See Tex. R. App. P.
44.1. In light of that conclusion, we need not consider Blake’s remaining arguments,
which challenged whether the summary judgment disposed of an unaddressed claim,
whether sufficient notice was given of the summary judgment hearing, and whether
the trial court abused its discretion by not granting a motion for continuance and
motion for new trial. See Tex. R. App. P. 47.1.
CONCLUSION
The trial court’s judgment is reversed and the case is remanded to that court
for additional proceedings.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
7