Gillespie, Agerain v. Kroger Texas, L.P., the Kroger Co.

Affirm and Opinion Filed October 25, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00652-CV
AGERAIN GILLESPIE, Appellant
V.
KROGER TEXAS, L.P., THE KROGER CO., and KROGER STORE No. 488, Appellees
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-01641-2011
OPINION
Before Justices FitzGerald, Lang, and Myers
Opinion by Justice FitzGerald
This is a premises liability case arising out of a slip and fall in a grocery store bathroom.
The trial court granted summary judgment in favor of Kroger Texas, L.P., the Kroger Co. and
Kroger Store No. 488 (collectively, “Kroger”) on Agerain Gillespie’s claims. In two issues on
appeal, Gillespie asserts the trial court erred in granting summary judgment on traditional and
no-evidence grounds. Concluding Gillespie’s arguments are without merit, we affirm the trial
court’s judgment.
BACKGROUND
While grocery shopping with her husband at a Kroger store, Gillespie asked to use the
restroom. An employee directed her to a restroom located up a flight of stairs next to the
manager’s office. When she reached the restroom, Gillespie was unable to close the door all the
way because it was swollen and sticking. The first stall that she approached was dirty, so
Gillespie elected to use the other stall. As she turned to the right, she fell on the ceramic tile
floor. Specifically, Gillespie fell on her left side, hitting her left hip and knee on the floor and
breaking her left arm at the elbow. The Kroger manager was sitting in his office next door and
asked if everything was all right. When Gillespie responded that she had fallen, the manager
asked if he could come in. Gillespie responded affirmatively, and requested that the manager
page her husband. Gillespie remained on the floor and noticed that it was cool and damp, and she
could see footprints going toward the sinks. When Gillespie’s husband arrived in the restroom,
he wiped the floor with paper towels and used the towels to clean Gillespie’s hand, which was
wet and dirty. The floor was slippery as Gillespie’s husband and the manager tried to lift her up.
The manager rolled an office chair into the room and braced it with his body as he and the
husband lifted Gillespie into the chair and then rolled her into the office.
The manager called an ambulance. As the crew was preparing to take Gillespie down the
stairs, the manager went back into the restroom to retrieve Gillespie’s purse. As he was picking it
up, Gillespie saw him slip and commented, “See how slippery it is?” The manager agreed that
the floor was slippery and stated that it was probably sweat or condensation from the pipes on
the floor.
The manager prepared an incident report showing that the accident occurred on June 27,
2009, at 8:35 p.m. The report stated that the manager noticed there was a film on the floor and he
could see where Gillespie’s legs had hit the floor and disturbed the surface. The film appeared to
be around the stall doors. The description of the accident reads, “Damp film of water — not
puddling,” in an area that covered an area 6 feet by 6 feet.
Gillespie subsequently filed suit against Kroger on a premises liability theory of
recovery. Kroger filed a traditional and no-evidence motion for summary judgment, and
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Gillespie responded. In support of her response, Gillespie filed her affidavit, the affidavit of her
husband, and an expert affidavit. Although Kroger objected to Gillespie’s summary judgment
evidence, there is no indication that the trial court ruled on the objections. Following a hearing,
the trial court entered an order granting Kroger’s motion and dismissing Gillespie’s claims with
prejudice. The order did not specify the specific grounds for the trial court’s ruling. This appeal
followed.
ANALYSIS
Gillespie asserts the trial court erred in granting a no-evidence and traditional summary
judgment in favor of Kroger. When a party files a hybrid summary judgment motion on both no-
evidence and traditional grounds, we first review the trial court’s judgment under the no-
evidence standard of review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If
the non-movant failed to produce more than a scintilla of evidence under the no-evidence
summary judgment provisions of Rule 166a(i), then there is no need to analyze whether the
movant’s summary judgment proof satisfied the burden set forth for traditional summary
judgment under Rule 166a(c). See TEX. R. CIV. P. 166a(c) & (d); East Hill Marine, Inc. v. Rinker
Boat Co., 229 S.W.3d 813, 816 (Tex. App.—Fort Worth 2007, pet. denied).
In conducting our no-evidence summary judgment review, we review the evidence
presented by the motion and response in the light most favorable to the party against whom the
summary judgment was rendered, credit evidence favorable to that party if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary judgment motion should be
denied if the nonmovant presents more than a scintilla of probative evidence to raise a genuine
issue of material fact on the challenged element or elements. Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists
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when reasonable and fair-minded individuals could differ in their conclusions. Id. Less than a
scintilla of probative evidence exists if the evidence creates no more than a mere surmise or
suspicion of fact regarding a challenged element. Id.
Therefore, we begin our analysis with the no-evidence motion for summary judgment.
Kroger’s no-evidence summary judgment challenged Gillespie’s premises liability claim;
specifically, Kroger asserted Gillespie had no evidence that Kroger knew or should have known
of the dangerous condition that caused her fall. Gillespie asserts the trial court erred in granting
summary judgment because the evidence supported an inference that Kroger knew or should
have known that there was a problem with moisture condensation in the women’s restroom that
posed an unreasonable risk of harm.
To recover on a premises liability theory, a plaintiff must establish that the injury resulted
from a condition of the premises. Keetch v. The Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A
plaintiff must prove: 1) actual or constructive knowledge of some condition on the premises by
the owner/operator; 2) that the condition posed an unreasonable risk of harm; 3) that the
owner/operator did not exercise reasonable care to reduce or eliminate the risk; and 4) that the
owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Wal-Mart
Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). An owner or occupier is not an
insurer of injuries to its invitees. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
Instead, the duty owed by an owner or occupier is to exercise reasonable care to protect against
dangerous conditions on the premises that create an unreasonable risk of harm which it knew
about, or by the exercise of reasonable care, would have discovered. Id.
The threshold requirement for a premises liability claim is the existence of actual or
constructive knowledge of a condition on the premises. See Motel 6 G.P., Inc. v. Lopez, 929
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S.W.2d 1, 3 (Tex. 1996). “An owner/occupier cannot breach a duty that it does not owe, and it
does not owe a duty to correct an alleged dangerous condition of which it is not aware.” Id. at 4.
The summary judgment record includes deposition testimony from the Kroger manager
stating that Kroger had never experienced a problem in the restroom and was not aware that the
condition existed. In response, Gillespie filed the affidavit of an expert, George Teer. Teer
conducted an inspection of the restroom approximately two and a half years after the incident.
The report attached to Teer’s affidavit stated that “there had likely been a leak or significant
moisture problem in the women’s restroom at some time.” The report further stated that “the sink
drain piping and the floor below the sink . . . indicated prior leaks.”
Gillespie also relies on the fact that the restroom was located up a flight of steps and not
readily accessible to Kroger’s customers to infer that the restroom was used primarily by Kroger
employees. Gillespie contends that being unable to completely close the swollen door of the
restroom is indicative of a “high presence” of moisture. Because the patch of slippery film was
described as filthy, and there were footprints from the toilet stalls to the sinks, Gillespie contends
the evidence shows the condition developed over a period of time. Gillespie further relies on the
manager’s comment that the slippery spot was probably caused by condensation.
Significantly, the unreasonably dangerous condition for which a premises owner may be
liable is the “condition at the time and place the injury occurs, not some antecedent situation that
produced the condition.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006).
Moreover, as the Brookshire court observed, “[t]he rule requiring proof that a dangerous
condition existed for some length of time before a premises owner may be charged with
constructive notice is firmly rooted in our jurisprudence.” Id. at 409.
Here, Gillespie failed to provide any evidence that Kroger had actual or constructive
knowledge of the condition of the restroom at the time of her fall. Although Gillespie’s expert
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opined that there had been a leak “at some time,” there is no evidence to establish that there was
a leak on the day of the incident, or to establish exactly what had occurred to cause the floor to
be slippery. There is also no evidence that the leak or other dangerous condition existed long
enough for Kroger to have discovered it upon reasonable inspection. See Bowman v. Brookshire
Grocery Co., 317 S.W.3d 500, 505 (Tex. App.—Tyler 2010, pet. denied). Gillespie requests that
we indulge an inference of knowledge based on the circumstantial evidence. But “meager
circumstantial evidence from which equally plausible inferences may be drawn is speculative
and thus legally insufficient to support a finding.” Wal-Mart v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998). On this record, we conclude that Gillespie failed to bring forth more than a scintilla
of evidence to establish actual or constructive knowledge of the condition of the restroom, and
therefore the trial court did not err in granting Kroger’s no-evidence motion for summary
judgment on Gillespie’s premises liability claim. Gillespie’s first issue is overruled.
Our resolution of Gillespie’s first issue obviates the need to consider her remaining issue.
See TEX. R. APP. P. 47.1. The judgment of the trial court is affirmed.
120652F.P05 /Kerry P FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AGERAIN GILLESPIE, Appellant On Appeal from the 366th Judicial District
Court, Collin County, Texas
No. 05-12-00652-CV V. Trial Court Cause No. 366-01641-2011.
Opinion delivered by Justice FitzGerald.
KROGER TEXAS, L.P., THE KROGER Justices Lang and Myers participating.
CO., and KROGER STORE No. 488
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees KROGER TEXAS, L.P., THE KROGER CO., and
KROGER STORE No. 488 recover their costs of this appeal from appellant AGERAIN
GILLESPIE .
Judgment entered October 25, 2013
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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