Opinion=20
issued February 28, =
2008
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In The =
Court of=20
Appeals
For=20
The
First =
District of=20
Texas
NO. 01-06-01109-CV
__________
DEBRA =
LOFTON,=20
Appellant
V.
MARMAXX OPERATING=20
CORP., INDIVIDUALLY
AND =
D/B/A T.J.=20
MAXX, Appellee
On Appeal from the =
113th District=20
Court
Harris County, Texas
Trial Court Cause No.=20
2006-17380
MEMORANDUM=20
OPINION
<=
/SPAN>In=20
this trip and fall case, Debra Lofton appeals the trial =
court=E2=80=99s grant of=20
Marmaxx Operating Corp. d/b/a T.J. Maxx=E2=80=99s (=E2=80=9CT.J. =
Maxx=E2=80=9D) summary judgment.=20
In her sole issue on appeal, Lofton argues that the trial court =
erred in=20
granting T.J. Maxx=E2=80=99s motion for summary judgment as there =
is sufficient=20
evidence of a genuine issue of material fact on each element of =
her cause=20
of action. We affirm.Background
<=
/SPAN>On=20
May 4, 2004, Lofton shopped in the T.J. Maxx department store, =
purchased=20
her items, and was walking out of the store when she tripped on =
the floor=20
mat in front of the exit. Lofton broke her elbow.
<=
/SPAN>Lofton=20
brought a premises liability suit against T.J. Maxx, asserting =
that T.J.=20
Maxx was negligent for (1) creating the dangerous condition, (2)=20
maintaining the dangerous condition, (3) failing to correct and =
make safe=20
the dangerous condition, and (4) failing to warn its customers of =
the=20
dangerous condition, all of which resulted in her injuries. T.J. =
Maxx=20
filed a no-evidence motion for summary judgment asserting that =
Lofton had=20
no evidence that (1) T.J. Maxx had any actual knowledge of any =
defect, (2)=20
T.J. Maxx had any constructive knowledge of any defect, (3) there =
was a=20
defect, (4) any alleged defect posed an unreasonable risk of harm, =
(5)=20
T.J. Maxx failed to exercise reasonable care to reduce or =
eliminate any=20
alleged risk, and (6) T.J. Maxx=E2=80=99s alleged failure was the =
proximate cause=20
of Lofton=E2=80=99s injuries. Lofton responded to the motion and =
attached her=20
affidavit, the accident report, a recorded claims statement, T.J. =
Maxx=E2=80=99s=20
responses to requests for production, and excerpts from the =
deposition of=20
Leila Marie Baines, T.J. Maxx=E2=80=99s assistant manager. Baines =
testified that=20
the mats are kept clean and are placed in the area =E2=80=9Cto =
make sure they are=20
in the area just in case it rained.=E2=80=9D The mats are mostly =
for people when=20
they are entering the store. Baines also testified that she did =
not=20
believe Lofton tripped on the mat. Lofton contended that T.J. Maxx =
created=20
a fact question as to the location of the incident. She further =
contended=20
that =E2=80=9Cnotice is not an element of [her] claim because =
[her] claim is based=20
on the actions of [T.J. Maxx] and its employees by creating the =
hazard.=E2=80=9D The placement of the mat created a hazardous =
or unreasonably=20
dangerous condition. Lofton=E2=80=99s response concluded by =
arguing that the=20
following arguments prevent the granting of T.J. Maxx=E2=80=99s =
summary=20
judgment:
(1) the subject mat was placed in an =
area of the=20
store where invitees would not expect it to be;
(2) because the weather was sunny on =
the date of the incident, the mat should =
have been=20
removed since there was no need for the stated purpose of the mat; =
and=20
(3) the condition of the mat was more =
likely to=20
cause someone to trip and fall.
T.J. Maxx objected to Lofton=E2=80=99s =
summary judgment=20
evidence. T.J. Maxx specifically complained of two statements in =
Lofton=E2=80=99s=20
affidavit=E2=80=94=E2=80=9CIt was dangerous for TJ Maxx to have =
the mat in the exit area.=E2=80=9D=20
=E2=80=9CThe placement of the mat at the exit created an =
unreasonably dangerous=20
condition.=E2=80=9D=E2=80=94because the statements were =
self-serving, legally conclusory,=20
factually conclusory, and not based on personal knowledge. T.J. =
Maxx=20
further objected to Lofton=E2=80=99s reference to photographs, =
which were not=20
attached to the affidavit. ![3DFootnote](3D"")
<=
/SPAN>The=20
trial court sustained T.J. Maxx=E2=80=99s objections to =
Lofton=E2=80=99s summary judgment=20
evidence and granted a take-nothing judgment. Lofton does not =
contest the=20
ruling on the summary judgment evidence, but appeals the grant of =
summary=20
judgment.
Standard of=20
Review
<=
/SPAN>Summary=20
judgment is a question of law. Provident Life & Accid. Ins. =
Co. v.=20
Knott, 128 S.W.3d 211, 220 (Tex. 2003). Thus, we review a =
trial=20
court=E2=80=99s summary judgment decision de novo. Id. at =
215. A party=20
moving for no-evidence summary judgment must assert only that =
there is no=20
evidence of one or more essential elements of a claim or defense =
on which=20
the non-movant would have the burden of proof at trial. See =
Tex. R. Civ. P. 166a(i). =
The=20
burden then shifts to the non-movant to produce evidence raising a =
fact=20
issue on the challenged elements. See id. A no-evidence =
summary=20
judgment is improper if the respondent brings forth more than a =
scintilla=20
of probative evidence to raise a genuine issue of material fact.=20
Id.; Forbes Inc. v. Granada Bioscis., Inc., 124 =
S.W.3d 167,=20
172 (Tex. 2003). Less than a scintilla of evidence exists when the =
evidence is so weak as to do no more than create a mere surmise or =
suspicion of a fact. Forbes, 124 S.W.3d at 172. More than a =
scintilla of evidence exists if it would allow reasonable and =
fair-minded=20
people to differ in their conclusions. Id. As with a =
traditional=20
summary judgment, we view the evidence in the light most favorable =
to the=20
non-movant, disregarding all contrary evidence and inferences. =
King=20
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. =
2003).
<=
/SPAN>If=20
the trial court has granted summary judgment without specifying =
the ground=20
or grounds relied on for the ruling, summary judgment will be =
affirmed on=20
appeal if any of the theories advanced is meritorious. See =
State Farm=20
Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.=20
1993).
Premises=20
Liability
<=
/SPAN>It=20
is undisputed that Lofton was T.J. Maxx=E2=80=99s invitee. As =
such, T.J. Maxx owed=20
her a duty to exercise reasonable care to protect her from =
dangerous=20
conditions in the store, known or discoverable by T.J. Maxx. =
See=20
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. =
1998).=20
However, an owner-operator=E2=80=99s duty toward its invitee does =
not make the=20
owner-operator an insurer of the invitee=E2=80=99s safety. =
Id. To recover=20
damages in a slip-and-fall case, a plaintiff must =
prove:
(1) Actual or constructive knowledge of =
some=20
condition on the premises by the owner-operator;
(2) That the condition posed an =
unreasonable risk=20
of harm;
(3) That the owner-operator did not =
exercise=20
reasonable care to reduce or eliminate the risk; =
and
(4) That the owner-operator=E2=80=99s =
failure to use such=20
care proximately caused the plaintiff=E2=80=99s =
injuries.
Gonzalez, 968 S.W.2d at 264; =
Corbin v.=20
Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). The=20
owner-operator is considered to have constructive knowledge of any =
premises defects or other dangerous conditions that a reasonably =
careful=20
inspection would reveal. Corbin, 648 S.W.2d at =
295.
<=
/SPAN>Because=20
an invitee=E2=80=99s suit against a premises owner-operator is a =
simple negligence=20
action, the standard of care required of the owner-occupier toward =
its=20
invitees is the ordinary care that a reasonably prudent person =
would=20
exercise under the same or similar circumstances. Id. at =
295. The=20
owner-operator=E2=80=99s liability to an invitee depends, not on =
whether a=20
specific set of facts or a specific breach of duty is established, =
but, on=20
whether the owner-operator acted reasonably in light of what it =
knew or=20
should have known about the risks associated with the condition on =
the=20
premises. Id. The core of the duty depends on actual or=20
constructive knowledge of an unreasonably dangerous condition. =
CMH=20
Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.=20
2000).
<=
/SPAN>Lofton=20
argues that T.J. Maxx had constructive knowledge of the =
mat=E2=80=99s placement in=20
front of the exit door because one of its employees had put the =
mat there.=20
T.J. Maxx responds that =E2=80=9Cknowledge that it had placed a =
floor mat in its=20
foyer is not knowledge that the floor mat presented a =
hazard.=E2=80=9D We agree.=20
Lofton presented no evidence that T.J. Maxx had received prior =
complaints=20
or that the floor mat or its location created an unreasonably =
dangerous=20
condition. Lofton=E2=80=99s affidavit created some evidence that =
she tripped on=20
the mat in the T.J. Maxx store, but she offered no evidence that =
anyone=20
had previously tripped on the mat, that the mat had any defects, =
that the=20
type of mat was unusual, or that its particular construction and =
placement=20
should have suggested to T.J. Maxx that it presented a prohibitive =
degree=20
of danger. See Seideneck v. Cal Bayreuther Assocs., 451 =
S.W.2d 752,=20
754=E2=80=9355 (Tex. 1970). Accordingly, there was no evidence =
that the mat=20
presented an unreasonable risk of harm.
<=
/SPAN>We=20
overrule Lofton=E2=80=99s sole issue.Conclusion
We affirm the judgment of the trial=20
court.
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; George=20
C. Hanks, Jr.
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; Justice
Panel consists of Justices =
Nuchia, Hanks,=20
and Higley. |