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Collins-Basemore v. Home Depot U.S.A., Inc.

Court of Appeals of Texas, Second District, Fort Worth

February 23, 2017

AIDA COLLINS-BASEMORE APPELLANT
v.
HOME DEPOT U.S.A., INC. APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2015-000680-2

          PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION[1]

          MARK T. PITTMAN JUSTICE.

         This is 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.

         Facts and Procedural Background

         Collins-Basemore 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.

         Home 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.

         As 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.

         In Home 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."

         At her 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.

         Challenging 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 case.

         After conducting a hearing on the motion, the trial court granted summary judgment for Home Depot without specifying the grounds for its ruling.

         Standard of Review

         A 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 ...


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