Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 366th Judicial District Court Collin County,
Texas Trial Court Cause No. 366-02043-2014.
Chief Justice Wright, Justice Lang-Miers, and Justice Myers
premises liability action, appellant Lisa Shoemaker appeals
the trial court's order granting summary judgment in
favor of appellee Kohl's Department Stores, Inc. In one
issue, Shoemaker argues the court erred by granting
Kohl's summary judgment motion. We affirm.
only issue, Shoemaker contends the trial court erred by
granting Kohl's no-evidence motion for summary judgment.
same legal sufficiency standard of review that is applied
when reviewing a directed verdict is also applied when
reviewing a no-evidence summary judgment. See Tex.
Integrated Conveyor Sys., Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.-- Dallas
2009, pet. denied) (op. on motion for reh'g); RTLC AG
Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824,
829 (Tex. App.--Dallas 2006, no pet.). When reviewing a
no-evidence summary judgment, we must determine whether the
non-movant produced any evidence of probative force to raise
a fact issue on the material questions presented. Tex.
Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d
at 833. We review a no-evidence summary judgment for evidence
that would enable reasonable and fair-minded jurors to differ
in their conclusions. See Hamilton v. Wilson, 249
S.W.3d 425, 426 (Tex. 2008) (per curiam); Wal-Mart,
Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006)
(per curiam); City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). We view all of the evidence in the
light most favorable to the party against whom the
no-evidence summary judgment was rendered and disregard all
contrary evidence and inferences. See Smith v.
O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009);
Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711
(Tex. 1997). A no-evidence summary judgment is improperly
granted if the non-movant presents more than a scintilla of
probative evidence to raise a genuine issue of material fact.
See Smith, 288 S.W.3d at 424. More than a scintilla
of evidence exists when the evidence rises to a level that
would enable reasonable and fair-minded people to differ in
their conclusions. See Merrell Dow, 953 S.W.2d at
711. When, as in this case, the trial court's order
granting summary judgment does not specify the grounds relied
on, we will affirm the summary judgment if any of the summary
judgment grounds are meritorious. FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000);
Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex.
App.--Dallas 2012, pet. denied).
property owner's duty is decided by the court as a
question of law and is dependent on factors like
foreseeability, risk of injury, and the burden on the owner.
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,
767 (Tex. 2010). Generally, premises owners have a duty to
protect invitees from, or warn them of, conditions posing
unreasonable risks of harm if the owners knew of the
conditions or, in the exercise of reasonable care, should
have known of them. See TXI Operations, L.P. v.
Perry, 278 S.W.3d 763, 764-65 (Tex. 2009). To recover on
a premises liability theory, the plaintiff must establish
that the injury resulted from a condition of the premises.
Keetch v. The Kroger Co., 845 S.W.2d 262, 264 (Tex.
1992). The plaintiff must prove (1) actual or constructive
knowledge of some condition on the premises by the
owner/operator; (2) that the condition posed an unreasonable
risk of harm; (3) that the owner/operator did not exercise
reasonable care to reduce or eliminate the risk; and (4) that
the owner/operator's failure to use such care proximately
caused the plaintiff's injuries. Wal-Mart Stores,
Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998);
see also CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99
duty owed by a property owner is to exercise reasonable care
to protect against dangerous conditions on the premises that
create an unreasonable risk of harm which it knew about or,
by the exercise of reasonable care, would have discovered.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.
2000). The threshold requirement for a premises liability
claim is the existence of actual or constructive knowledge of
a condition on the premises. See Motel 6 G.P., Inc. v.
Lopez, 929 S.W.2d 1, 3 (Tex. 1996). "An
owner/occupier cannot breach a duty that it does not owe, and
it does not owe a duty to correct an alleged dangerous
condition of which it is not aware." Id. at 4;
Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589, 592
(Tex. App.-Dallas 2013, pet. denied). Ordinarily, an
unreasonably dangerous condition for which a premises owner
may be liable is the condition at the time and place injury
occurs, not some antecedent situation that produced the
condition. Brookshire Grocery Co. v. Taylor, 222
S.W.3d 406, 407 (Tex. 2006).
condition poses an unreasonable risk of harm when there is a
"sufficient probability of a harmful event occurring
that a reasonably prudent person would have foreseen it or
some similar event as likely to happen." Hall v.
Sonic Drive-In of Angleton, Inc., 177 S.W.3d 306, 646
(Tex. App.--Houston [1st Dist.] 2005, pet. denied) (quoting
Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.
2002)) (internal quotation marks omitted).
"Foreseeability in this context 'does not require
that the exact sequence of events that produced an injury be
foreseeable.' Instead, only the general danger must be
foreseeable." Id. (quoting Cnty. of
Cameron, 80 S.W.3d at 556) (internal citations omitted).
Evidence of a similar injury or complaint caused by the
condition is probative on the question of whether the
condition posed an unreasonable risk of harm. Id.;
see also Klorer, 717 S.W.2d at 761. Whether a
particular condition poses an unreasonable risk of harm is
generally fact specific, and there is no definitive test for
determining whether a specific condition presents an
unreasonable risk of harm. Hall, 177 S.W.3d at 646
(citing Reliable Consultants, Inc. v. Jaquez, 25
S.W.3d 336, 342 (Tex. App.--Austin 2000, pet. denied)).
evidence shows that Shoemaker went to a Kohl's Department
Store in Frisco, Texas, on June 1, 2012, to change the
address on her credit card account. She testified in her
deposition that she was directed by a store employee in the
customer service area of the store to use a telephone in the
customer service area for that purpose. She sat for "at
least 20 minutes" in a chair provided by Kohl's
while on the phone, waiting on hold for someone to assist
her. She remembered looking over at a store employee at one
point and asking if they could assist her because she was on
her lunch break and needed to return to work. Shoemaker
waited on hold "[p]robably another 20 minutes"
before she decided to give up and return to work. Shoemaker
stated that she was sitting "straight back" in the
chair and her feet were on the floor; she was not leaning
forward or back. When she went to hang the phone up, the
chair "just flipped back out, " "slid out from
under [her], " or "just slipped out from under
[her]." Shoemaker said she landed on the floor on her
buttocks and lower back, catching herself with her hands.
Shoemaker testified that she was familiar with the customer
service area of the Kohl's store and that the concrete
floor was "[v]ery shiny, " "[v]ery nice,
" and was kept clean. She attributed her fall, at least
in part, to "the slick floor." She also speculated
that there could have been something wrong with the chair.
Gilbert, an employee who had worked at Kohl's for almost
ten years, and had been at the Frisco location for five of
those years, recalled that Shoemaker filled out an accident
report form after the incident. In the "Kohl's
Customer Incident Report, " signed by Shoemaker on June
1, 2012, the incident is described as follows: "Sitting
in chair at gift registry, reached for the phone & chair
slipped. Customer fell on rear end & caught self with
hands." Under the space provided for injuries, it states
that there were injuries to the "lower back, hips,
buttocks." In a witness statement attached to the
report, another store employee, Katherine Redmond, stated
that she saw "a customer sitting on the end of the chair
and the chair slide [sic] out from under her. She was in the
customer service area." Redmond added that she asked
this customer "three separate times if she was ok and
she said she was fine."
contends there is no evidence a condition on the premises
posed an unreasonable risk of harm, or that it had actual or
constructive knowledge of the allegedly dangerous condition.
Shoemaker argues that a chair should not slide out from
underneath the occupant just because the occupant moves to
hang up a phone. She maintains that this evidence is
sufficient to create a fact issue as to whether that chair at
that location on that floor presented an unreasonable risk of
harm--i.e., the evidence is sufficient to allow reasonable
people to differ regarding whether that chair, as provided by
Kohl's for its customer's use, presented a sufficient
probability of a harmful event occurring that a reasonably
prudent person would have foreseen it or some similar event
as likely to happen.
fact that Shoemaker fell is not, by itself, proof of an
unreasonably dangerous condition. As the Texas Supreme Court
has stated, "the fact an accident happens is no evidence
that there was an unreasonable risk of such an occurrence;
because almost any activity involves some risk of harm."
Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex.
1968); see also H.E.B. Food Stores, Inc. v. Flores,
661 S.W.2d 297, 300 (Tex. App.--Corpus Christi 1983, writ
dism'd); Ogueri v. Texas S. Univ., No.
01-10-00228-CV, 2011 WL 1233568, at *5 n. 4 (Tex.
App.--Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.);
Smylie v. First Interstate Bank, Tex., No.
14-99-00713-CV, 2000 WL 1707308, at *2 (Tex. App.--Houston
[14th Dist.] Nov. 16, 2000, no pet.). We have applied this
rule in other premises liability cases. See, e.g., Warren
v. Carlson Restaurants, Inc., No. 05-14-01232-CV, 2015
WL 9590579, at *2 (Tex. App.-- Dallas Dec. 30, 2015, no pet.)
(mem. op.) (plaintiff's fall on ramp outside of
restaurant's main entrance, standing alone, was no
evidence that ramp was unreasonably dangerous); Williams
v. Adventure Holdings, L.L.C., No. 05-12-01610-CV, 2014
WL 1607374, at *4-5 (Tex. App.- Dallas Apr. 22, 2014, pet.
denied) (mem. op.) (that an escalator injured a child was
itself no evidence ...