Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shoemaker v. Kohl's Department Stores, Inc.

Court of Appeals of Texas, Fifth District, Dallas

March 31, 2017

LISA SHOEMAKER, Appellant
v.
KOHL'S DEPARTMENT STORES, INC., Appellee

         On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-02043-2014.

          Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         In this 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.

         Discussion

         In her only issue, Shoemaker contends the trial court erred by granting Kohl's no-evidence motion for summary judgment.

         The 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).

         A 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 (Tex. 2000).

         The 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).

         A 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)).

         The 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.

         Afrika 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."

         Kohl's 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.

         But the 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.