Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, KERR, and PITTMAN, JJ.
T. PITTMAN JUSTICE.
a premises liability case. Appellant Aida Collins-Basemore
sued Appellee Home Depot U.S.A., Inc. (Home Depot) after she
was injured in a Home Depot store. The trial court granted
summary judgment for Home Depot, and Collins-Basemore now
appeals. In one issue, Collins-Basemore asks whether the
trial court erred by granting Home Depot's no-evidence
motion for summary judgment on its asserted ground that there
was no evidence it had notice of the condition that caused
her injuries. We affirm.
and Procedural Background
alleged in her petition that while shopping in a Home Depot
store, she severely lacerated her thumb in attempting to
retrieve a mirror from a shelf of mirrors. She alleged that,
unbeknownst to her, one of the mirrors on the shelf had been
broken and that this broken mirror lacerated her thumb. She
asserted a negligence claim and sought damages for past and
future medical expenses, past and future pain and suffering,
past and future mental anguish, and attorney's fees.
Depot filed a combined traditional and no-evidence motion for
summary judgment. As no-evidence grounds, Home Depot asserted
that there was no evidence that it broke the mirror, that it
knew the mirror had been broken, or that the broken mirror
had been present long enough for Home Depot to be charged
with having discovered it. As a traditional ground, Home
Depot asserted that it did not have notice of the condition
of the broken glass.
summary judgment evidence, Home Depot attached copies of
Collins-Basemore's answers to Home Depot's request
for admissions and responses to Home Depot's
interrogatories, as well as her deposition testimony. In its
request for admissions, Home Depot asked Collins-Basemore to
admit that she did not know who broke the mirror, when it was
broken, or how long it had been on the shelf after it was
broken. She denied the admissions on the basis that she was
"without information to admit or deny." Further,
she admitted that Home Depot did not have notice that the
mirror was broken prior to her injury.
Depot's interrogatories, it asked Collins-Basemore to
state all facts upon which she asserted that Home Depot knew
or should have known about the broken mirror. In response,
she answered that "the company should have frequently
checked these displays or moved this section to a custom
service area. Had Home Depot done any of these things the
incident would not have happened."
deposition, Collins-Basemore testified that she had no idea
who broke the mirror or how long it had been broken before
she encountered it. She stated that she had no way of seeing
the mirror was broken before the box containing it was pulled
out, and the broken mirror was "[a]bsolutely not"
obvious to anybody walking by.
Home-Depot's no-evidence grounds in her summary judgment
response, Collins-Basemore asserted that Home Depot's
constructive notice of the broken mirror replaced its need to
have actual notice of that dangerous condition. She also
relied on her deposition testimony attached to Home
Depot's summary judgment motion, where she testified that
Home Depot should have frequently checked the mirror display
case. With respect to the traditional motion,
Collins-Basemore contended that Home Depot had failed to
produce any testimony that an employee of the store
frequently inspected the condition of the mirror display
conducting a hearing on the motion, the trial court granted
summary judgment for Home Depot without specifying the
grounds for its ruling.
defendant is entitled to traditional summary judgment on an
affirmative defense if the defendant conclusively proves all
the elements of the affirmative defense. Frost Nat'l
Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010),
cert. denied, 562 U.S. 1180 (2011); see
Tex. R. Civ. P. 166a(b), (c). To accomplish this, the
defendant-movant must present summary judgment evidence that