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In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00087-CV




SUZANNE S. CARPENTER, Appellant



V.



THE KROGER COMPANY AND/OR THE KROGER CO., Appellee




On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2003-67554




MEMORANDUM OPINION ON REHEARING

We grant appellant's motion for rehearing, vacate our April 6, 2006 judgment, withdraw our April 6, 2006 opinion, and issue this opinion in its place.

Appellant, Suzanne S. Carpenter, appeals the trial court's decision to grant defendant's motion for summary judgment in this premises liability case. In one issue, she challenges the trial court's rendition of summary judgment in favor of appellee, The Kroger Company (Kroger), and argues that appellee's spoliation of evidence prevented her from effectively arguing against the motion for summary judgment. We reverse and remand.

BACKGROUND

In her original petition, appellant alleged that, on December 14, 2001, she slipped and fell on a liquid substance on the floor of a Kroger Signature Store and sustained a broken kneecap and two broken shoulders. Although no store employee reported witnessing appellant's fall, Matthew Gless and Orlando Cuellar, the store's two co-managers, arrived on the scene shortly afterward to assist her. Gless took a sample of the liquid substance on the floor and snapped photographs of the scene. Both co-managers filled out a customer incident report. In January 2002, the documents, photos and liquid sample were turned over to RSKCo, a third party claims administrator. Robert Hamilton, a risk manager for Kroger, testified by deposition that, within 60 days of the incident, he realized that appellant's fall was a serious incident and could result in a claim. He further testified that, after hearing nothing from appellant's attorney for several months, the file was closed, and RSKCo retained custody of the file. Sometime after this, RSKCo and Kroger ended their business relationship, and RSKCo shipped the materials to its storage facility.

On December 12, 2003, almost two years after the incident, appellant filed her claim against Kroger. In January 2004, Kroger recalled the file from RSKCo's facility, but the file contained only the documents, not the photos or the liquid sample, and, according to Hamilton, no one seemed to know where those items were located.

Almost two and one-half years after the law suit was filed, Kroger moved for summary judgment on the ground that it had "negated the elements" of appellant's cause of action and was therefore entitled to judgment as a matter of law. In her response, appellant raised the issue of spoliation and argued that she was entitled to go to a jury with a presumption that the lost or destroyed evidence would have been favorable to her. The trial court granted Kroger's motion, and appellant now appeals.

DISCUSSION

Standard of Review

As the moving party under rule 166a(c), Kroger had the burden of showing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. (1) Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether there is a material fact issue precluding summary judgment, a reviewing court must take evidence favorable to the non-movant as true, must indulge every reasonable inference, and must resolve any doubts in her favor. Id. When the movant is the defendant, summary judgment is proper if the defendant negates at least one essential element of the plaintiff's claim. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the movant has established a right to summary judgment, the non-movant then has the burden to present any issues that would preclude summary judgment.  See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Notice

Appellant contends that the trial court erred in rendering summary judgment for Kroger because there is a material fact issue regarding whether Kroger had actual or constructive notice of the dangerous condition--one of the essential elements of her claim. In order to prevail on her premises liability claim, appellant was required to show that (1) the liquid substance on the floor posed an unreasonable risk of harm; (2) Kroger knew of the danger (actual notice) or reasonably should have known of the danger (constructive notice); and (3) Kroger failed to exercise ordinary care to protect appellant from the danger, by both failing to adequately warn her of the condition and failing to make that condition reasonably safe. State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996). Kroger did not deny the existence of the liquid on the floor. However, it claimed that it negated the notice element and was therefore entitled to judgment as a matter of law.

a. Kroger's Summary Judgment Evidence

Kroger's summary judgment evidence consisted of appellant's answers to interrogatories, Kroger's answers to interrogatories, excerpts from appellant's deposition, and the affidavits of Gless, Cuellar, store manager Bill Underwood, and Hamilton. Kroger argues that appellant's deposition, in which she testified that she did not see the liquid on the floor before her fall and did not know how the liquid got on the floor, establishes that she cannot prove that Kroger had notice. This argument improperly shifts the summary judgment burden to appellant. As the movant, Kroger was required to prove conclusively that it did not have actual or constructive notice of the liquid.

Kroger also contends that the affidavits of Gless, Cuellar, Underwood, and Hamilton establish that Kroger had no notice of the liquid. Gless's affidavit stated:

Prior to [appellant's] alleged fall, I had not seen this alleged substance and I had no notice that this or any other liquid was on the floor at the time of the alleged fall.



Throughout my working day as manager, I continuously walked the store and maintained a lookout for hazards and/or liquids or other foreign substances on the floor. I would estimate that prior to [appellant's] alleged fall I was in or around the subject areas within approximately one (1) hour of the alleged fall. At that time, I did not observe the alleged liquid on the floor, and I feel certain that had it been there I would have seen it.



. . . .



I am aware of no Kroger associate and/or employee who had knowledge that the subject liquid/substance was on the floor prior to the subject fall.



Cuellar's and Underwood's affidavits were substantially similar to Gless's, containing only a few word changes. Hamilton's affidavit did not address the issue of notice.

Gless's, Cuellar's, and Underwood's affidavits are evidence that these three managers had no notice of the liquid and that they knew of no associate or employee who did. However, they are not evidence that no other employee knew of the liquid. Each of the three affidavits refers to an unnamed employee who was assigned to use a dust mop continually and to spot mop as needed. There is no statement by this employee and no indication in the record that the employee was ever interviewed to determine whether he was aware of the liquid or whether he was the person who cleaned the floor after the incident. In addition, there was an employee listed as a witness on the incident reports filed by Gless and Cuellar, but there appears to be no statement by that employee regarding her knowledge.

Reviewing Kroger's evidence in the light most favorable to appellant and resolving all doubts in her favor, we hold that Kroger has not negated the element of notice and is, therefore, not entitled to judgment as a matter of law. Accordingly, we sustain appellant's issue as it relates to the rendition of summary judgment.

CONCLUSION

Because we have concluded that Kroger did not carry it's burden to establish that it is entitled to judgment as a matter of law, we need not reach appellant's spoliation argument. We reverse the judgment and remand the case to the trial court for further proceedings.





Sam Nuchia

Justice



Panel consists of Justices Nuchia, Keyes, and Higley.

1. In its motion for summary judgment, reply to appellant's response to the motion and supplemental motion, and appellate brief, Kroger interwove "no evidence" language with its assertions that it conclusively negated the notice element and was entitled to judgment as a matter of law. Kroger references only rule 166a(b) and (c) in its motion, reply, and brief. Kroger clarified, in its reply and supplemental motion that it's motion for summary judgment was filed as an "evidentiary" motion. Therefore, we review the judgment under rule 166a(c). See Tex. R. Civ. P. 166a(c).