PREMISES LIABILITY | SLIP & FALL CASES - HOTELS | RES IPSA LOQUITUR

Carlson v. Remington Hotel Corp. (Tex.App.- Houston [1st Dist.] May 22,
2008)(Nuchia
(premises liability, res ipsa loquitur)
AFFIRM TC JUDGMENT: Opinion by Justice Sam Nuchia  
Before Justices Nuchia, Hanks and Higley
01-07-00376-CV Lori Carlson and Shannon Carlson v. Remington Hotel Corporation d/b/a Hilton Houston NASA
Clear Lake; New Clear Lake Hotel d/b/a Nassau Bay Hilton; and New Clear Lake Group, GP, LLC
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown  
Attorney(s): Clay Dugas , Mike Jacobellis | J. Preston Wrotenbery  Kevin D. Jewell

MEMORANDUM OPINION

In one issue, appellants, Lori and Shannon Carlson challenge the trial court's no-evidence summary judgment in
favor of appellees, Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake Hotel, New Clear Lake
Hotel, d/b/a Nassau Bay Hilton, and New Clear Lake Group, GP, LLC, (collectively "the hotel").

We affirm.

Background

On February 23, 2005, Lori Carlson, her husband, daughter, and mother checked into two adjoining rooms at the
hotel. According to Lori, when she awoke the next morning, she stepped off the carpet into the bathroom and fell,
hitting her head and her side between the bathtub and the toilet. Lori alleged that the carpeting next to the
bathroom was "soaked with water." She testified that no one else used the bathroom that morning "that I'm aware
of" and "as far as I know." Appellants alleged that the cause of the wet carpet was "air conditioner condensate"
leaking from the nearby air conditioner.

Danny Gentry, the hotel employee who investigated appellants' complaint, testified that he went to appellant's room
and saw that the floor was "noticeably wet." He said that appellants told him they did not know where the water
came from. When asked his opinion of the source of the water on the floor, he said, "It could have been the bathtub
overflowed. It could have been the toilet overflowed. It could have been the sink. I mean, none of those appeared to
me to be overflowing, though . . . It's possible it could have ran down the inside of the wall." He testified that he did
not see the air conditioner leaking and he did not inspect the pipe or the auxiliary pipe to see if either were
clogged. He said that before the air conditioner drain line would leak, condensate would leak from the auxiliary line
and drip directly into the bathtub. He said that the auxiliary line was not dripping.

Appellants brought a premises-liability suit against the hotel. Appellees filed a no-evidence motion for summary
judgment, which the trial court granted on March 5, 2007. The trial court denied appellants' motion for new trial.

In their sole issue on appeal, appellants assert that the trial court erred in granting the hotel's no-evidence motion
for summary judgment. Specifically, appellants argue that res ipsa loquitur applies because, they say, they have
ruled out all causes except a leaking air conditioner and the hotel had control over the air conditioner's
maintenance.

Standard of Review

We follow the well-known standard of review for Rule 166a(i) summary judgments. Tex. R. Civ. P. 166a(i) ("After
adequate time for discovery, a party without presenting summary judgment evidence may move for summary
judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which
an adverse party would have the burden of proof at trial."); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
S.W.3d 94, 99 (Tex. 2004); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834
(Tex. App.--Houston [1st Dist.] 1999, no pet.).

Res Ipsa Loquitur

Res ipsa loquitur is a doctrine that permits the fact-finder to infer negligence in the absence of direct proof. Jones
v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). A plaintiff who successfully invokes the doctrine of res ipsa
loquitur can survive a no-evidence challenge on the issue of negligence. Mobil Chem. Co. v. Bell, 517 S.W.2d 245,
251 (Tex. 1974). Res ipsa loquitur applies only when (1) the character of the accident is such that it would not
ordinarily occur without negligence and (2) the instrumentality causing the injury was under the management and
control of the defendant. Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982).

The first factor, which supports the inference of negligence, can be proven with general knowledge or expert
testimony that the accident would not ordinarily occur in the absence of negligence. See Mobil Chem. Co., 517
S.W.2d at 252; see Trans Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640, 649
(Tex. App.--Houston [1st Dist.] 2000, pet. denied). The second factor connects the negligence to the defendant.
Mobil Chem. Co., 517 S.W.2d at 251. "The possibility of other causes does not have to be completely eliminated,
but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that
the negligence, if any, lies at the defendant's door." Id. When the plaintiff's evidence shows only that it is equally
probable that the negligence was that of another, the second factor has not been proven. See Marathon Oil Co.,
632 S.W.2d at 574.

Discussion

Appellees filed a no-evidence motion for summary judgment, alleging that appellants had no evidence that the
hotel had actual or constructive knowledge of the alleged dangerous condition on the premises, i.e., the water on
the floor near the bathroom.

To prevail on a premises liability claim, a plaintiff must prove: (1) that the owner had actual or constructive
knowledge of some condition on the premises;

(2) that the condition posed an unreasonable risk of harm;

(3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and

(4) that the owner's failure to use reasonable care proximately caused the plaintiff's injuries.

Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). "Thus, the existence of actual or constructive knowledge
of a premises defect is a threshold requirement for such a claim." Id. "A slip-and-fall plaintiff satisfies the notice
element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew
that the substance was on the floor, 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).

In response to appellees' no-evidence motion for summary judgment, appellants provided deposition testimony
from Lori Carlson and from Danny Gentry, the hotel's employee. Neither deposition provides direct evidence that
appellees caused, actually knew of, or had a reasonable opportunity to discover the water on the carpet in the
hotel room. Thus, appellants provided no evidence that appellees had actual or constructive notice of the alleged,
dangerous condition, i.e., the wet carpet.

However, appellants argue that res ipsa loquitur applies. Because appellants had no expert testimony, they needed
to show that it is generally known that carpet adjacent to a bathroom would not become wet in the absence of
negligence. We are aware of no such general knowledge, and appellant has not shown that proposition to be true.
Moreover appellants have not shown that the wet carpet, i.e., the instrumentality that caused the accident, was in
the control of appellees. See Marathon Oil Co., 632 S.W.2d at 573 (holding that plaintiff must show the
instrumentality causing the injury was under management and control of defendant). In fact, it was not; it was in
appellant's control overnight. Accordingly, we hold that res ipsa loquitur does not apply to this case.

We overrule appellants' only issue.

Conclusion

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.