Opinion issued November 15,=20
=
2007
<=
BR>
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-00689-CV
BILLY =
CLARK,=20
Appellant
V.
LOWE=E2=80=99S HOME=20
CENTERS, INC., D/B/A LOWE=E2=80=99S OF TOMBALL, TX., STORE NO. =
1052,=20
Appellee
On =
Appeal from the=20
234th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-04895
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
Billy Clark, challenges the no-evidence summary judgment rendered =
against=20
him in his premises liability lawsuit against Lowe=E2=80=99s Home =
Centers, Inc.,=20
d/b/a Lowe=E2=80=99s of Tomball, TX., Store No. 1052 =
(=E2=80=9CLowe=E2=80=99s=E2=80=9D). In two issues,=20
Clark argues that the trial court erred in (1) granting summary =
judgment=20
in favor of Lowe=E2=80=99s and (2) in excluding evidence of =
Lowe=E2=80=99s subsequent=20
remedial measures.
<=
/SPAN>We=20
affirm.
Background
<=
/SPAN>In=20
January 2003, Billy Clark was shopping for ten-foot galvanized =
corrugated=20
metal sheets at Lowe=E2=80=99s in Tomball, Texas. While attempting =
to remove the=20
sheets from the storage rack, Clark injured his left hand. As a =
result of=20
this injury, the index finger of Clark=E2=80=99s right hand was =
partially=20
amputated. Clark alleges that shortly after the accident occurred =
Lowe=E2=80=99s=20
installed a sign warning customers to ask for help if they wanted =
to=20
purchase the metal sheets.
<=
/SPAN>In=20
January 2005, Clark filed suit against Lowe=E2=80=99s. =
Lowe=E2=80=99s filed a no-evidence=20
motion for summary judgment in April 2006, arguing that Clark had =
no=20
evidence that there was a condition on the premises that posed an=20
unreasonable risk of harm, that Lowe=E2=80=99s knew or reasonably =
should have=20
known of the condition, that Lowe=E2=80=99s breached a duty of =
care to Clark, or=20
that Lowe=E2=80=99s breach proximately caused Clark=E2=80=99s =
injury. Clark responded that=20
the fact that another unidentified Lowe=E2=80=99s store stacked =
its corrugated=20
metal sheets differently and his assertion that a sign was added =
after his=20
injury, coupled with the fact that he had actually been injured, =
supported=20
his claim against Lowe=E2=80=99s. The trial court refused to =
consider the evidence=20
Clark offered regarding the sign posted after his injury. It =
granted=20
Lowe=E2=80=99s no-evidence motion for summary judgment and =
dismissed Clark=E2=80=99s case=20
with prejudice. This appeal followed.
No-Evidence=20
Summary Judgment
&nbs=
p;Standard of Review
<=
/SPAN>We=20
review the trial court=E2=80=99s grant of summary judgment de =
novo. Provident=20
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 =
(Tex.=20
2003). We must make inferences, resolve doubts, and view the =
evidence in=20
the light most favorable to the non-movant. Rhone-Poulenc, Inc. =
v.=20
Steel, 997 S.W.2d 217, 223 (Tex. 1999). A no-evidence summary =
judgment=20
motion asserts that no evidence exists as to at least one =
essential=20
element of the non-movant=E2=80=99s claims on which the non-movant =
would have the=20
burden of proof at trial. Bendigo v. City of Houston, 178 =
S.W.3d=20
112, 113=E2=80=9314 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, =
no pet.) (citing=20
Jackson v. Fiesta Mart, 979 S.W.2d 68, 70=E2=80=9371 (Tex. =
App.=E2=80=94Austin=20
1998, no pet.)). On review, we ascertain whether the non-movant =
produced=20
more than a scintilla of probative evidence to raise a genuine =
issue of=20
material fact. Id. Here, because the summary judgment order =
does=20
not specify the grounds upon which the trial court relied for its =
ruling,=20
we will affirm the judgment if any of the theories included in the =
motion=20
has merit. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 309 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2007, no pet.) (citing Weiner =
v. Wasson,=20
900 S.W.2d 316, 317 n. 2 (Tex. 1995)).
Premises =
Liability
<=
/SPAN>A=20
store owes an invitee a duty to exercise reasonable care to =
protect the=20
invitee from dangerous conditions in the store that were known or=20
reasonably discoverable to it. ![3DFootnote](3D"")
Bendigo, 178 S.W.3d at 114 =
(citing=20
Wal=E2=80=93Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, =
936 (Tex.=20
1998)). The store is not, however, an insurer of the =
invitee=E2=80=99s safety.=20
Id. To recover under a theory of premises liability, a =
plaintiff=20
must prove (1) that the owner or occupier had actual or =
constructive=20
knowledge of a condition on the premises; (2) that the condition =
posed an=20
unreasonable risk of harm; (3) that the owner or occupier did not =
exercise=20
reasonable care to reduce or eliminate the risk; and (4) that the =
owner or=20
occupier=E2=80=99s failure to use such care proximately caused the =
plaintiff=E2=80=99s=20
injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.=20
2000).
<=
/SPAN>In=20
its no-evidence motion for summary judgment, Lowe=E2=80=99s =
contends that Clark=20
failed to produce any evidence that (1) Lowe=E2=80=99s knew or =
reasonably should=20
have known of the condition of the corrugated metal sheets; (2) =
that the=20
condition posed an unreasonable risk of harm; (3) that =
Lowe=E2=80=99s breached the=20
duty of ordinary care by failing to adequately warn of the =
condition and=20
make the condition safe; or (4) that Lowe=E2=80=99s breach =
proximately caused=20
Clark=E2=80=99s injury. Clark correctly states in his brief that =
constructive=20
knowledge of a dangerous condition can be shown through =
circumstantial=20
evidence when it is more likely than not that the dangerous =
condition=20
existed long enough to give the store a reasonable opportunity to =
discover=20
the problem. Wal-Mart Stores, 968 S.W.2d at 936. However, =
Clark=20
provides no evidence as to how the corrugated metal sheets came to =
be=20
arranged as they were when he was injured, nor does he present any =
evidence as to how long the sheets had been in that=20
condition.
<=
/SPAN>Clark=20
suggests that we should look upon his deposition testimony of=20
precautionary measures that Lowe=E2=80=99s could have taken as =
evidence of Lowe=E2=80=99s=20
knowledge. However, Clark=E2=80=99s deposition testimony is not in =
the appellate=20
record. It is only included as an appendix to his =
brief.
With limited exceptions not relevant =
here, an=20
appellate court may not consider matters outside the appellate =
record.=20
Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 =
S.W.2d 840,=20
841 (Tex. 1979) (orig. proceeding); Nguyen v. Intertex, =
Inc., 93=20
S.W.3d 288, 292=E2=80=9393 (Tex. App.=E2=80=94Houston [14th Dist.] =
2002, no pet.). The=20
attachment of documents as appendices to briefs is not formal =
inclusion in=20
the record on appeal, and, therefore, the documents cannot be =
considered=20
by this Court.
Nguyen, 93 S.W.3d at 293. Clark =
also argues=20
that his testimony about Lowe=E2=80=99s subsequent remedial =
measure of placing a=20
warning sign near the corrugated metal sheets constitutes more =
than a=20
scintilla of evidence that Lowe=E2=80=99s had constructive =
knowledge of the=20
dangerous condition. As we explain below, however, subsequent =
remedial=20
measures are not admissible to show liability for a previous =
accident.=20
Tex. R. Evid.=20
407.
<=
/SPAN>Clark=20
has failed to present more than a scintilla of evidence that =
Lowe=E2=80=99s had=20
actual or constructive knowledge of the dangerous condition in its =
store.=20
See CMH Homes, 15 S.W.3d at 99; Bendigo, 178 S.W.3d =
at=20
114.
<=
/SPAN>We=20
overrule Clark=E2=80=99s first issue.
Admissibility of=20
Remedial MeasuresIn his=20
second issue, Clark argues that the trial court erred in excluding =
evidence that Lowe=E2=80=99s put up a sign to warn customers of =
the potential=20
hazard in moving the corrugated sheets without assistance after =
Clark was=20
injured.
<=
/SPAN>There=20
is no difference between the standards for evidence that would be=20
admissible in a summary judgment proceeding and those applicable =
at a=20
regular trial. United Blood Servs. v. Longoria, 938 S.W.2d =
29, 30=20
(Tex. 1997). We review the trial court=E2=80=99s rulings on the =
admissibility of=20
evidence for abuse of discretion. Owens=E2=80=93Corning =
Fiberglas Corp. v.=20
Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses =
its=20
discretion when it acts without regard to guiding rules or =
principles.=20
Id.
<=
/SPAN>Generally,=20
evidence of subsequent remedial measures is not admissible to =
prove=20
negligence, culpable conduct, a defect in a product, a defect in a =
product=E2=80=99s design, or a need for a warning or instruction. =
Tex. R. Evid. 407. =
Subsequent=20
remedial measures can be used to prove ownership, control, or =
feasibility=20
of precautionary measures, if controverted. Id. =
Because=20
neither ownership, control, nor feasibility was controverted in =
this case,=20
and Clark did not argue that he was attempting to introduce =
evidence of=20
the sign for any reason other than to show negligence, the trial =
court=20
acted properly in accordance with the rules of evidence. See =
id.=20
Therefore, the trial court did not abuse its discretion when it =
excluded=20
evidence regarding the warning sign. See Owens=E2=80=93Corning =
Fiberglas,=20
972 S.W.2d at 43.
<=
/SPAN>We=20
overrule Clark=E2=80=99s second issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Evelyn=20
V. Keyes
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Keyes. |