Court of Appeals of Texas, Third District, Austin
COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO.
C-1-CV-12-005449, HONORABLE TODD T. WONG, JUDGE PRESIDING
Justices Puryear, Pemberton, and Goodwin.
Housour appeals the trial court's summary judgment in
favor of Burt-Watts Industries, Inc., dismissing her
premises-liability lawsuit for personal injuries she
sustained when she tripped and fell onto the floor of her
employer's building, which was being remodeled by
Burt-Watts. For the following reasons, we will affirm the
trial court's final summary judgment.
filed this lawsuit against Burt-Watts after she sustained
personal injuries as a result of tripping and falling in the
lobby of her employer's building, which was being
remodeled by Burt-Watts. Her petition alleged that Burt-Watts
had covered the lobby floors with masonite boards, secured on
the edges by blue painter's tape, to protect the floors
while other portions of the building were being remodeled and
that her sandal got caught on the edge of one of the masonite
boards where the painter's tape had become worn and
split, causing the edge of the board to lift up and create a
trip hazard. After a sufficient time for discovery had
passed, Burt-Watts filed both traditional and no-evidence
motions for summary judgment, to which Housour responded. The
trial court granted both of Burt-Watts's motions, and
Housour appeals the trial court's order granting
Burt-Watts's no-evidence summary-judgment motion and
dismissing the entirety of her claims.
no-evidence summary-judgment motion, Burt-Watts challenged
the existence of evidence supporting the following elements
of Housour's premises-liability claim: (1) that a
condition on the premises posed an unreasonable risk of harm;
(2) that Burt-Watts had actual or constructive knowledge of
such condition; and (3) that Burt-Watts had a duty to reduce
or eliminate the risk of harm because of its actual or
constructive knowledge of such condition. See Del Lago
Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). If
Housour failed to present evidence creating a genuine issue
of material fact on any of these elements, summary judgment
in favor of Burt-Watts was proper. See Tex. R. Civ.
P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006).
first address the element of whether Burt-Watts had actual or
constructive knowledge of the alleged unreasonably dangerous
condition. To prove actual or constructive knowledge
of an unreasonably dangerous condition, a plaintiff must
prove at least one of the following: (1) defendant's
employees caused the harmful condition; (2) defendant's
employees either saw or were told of the harmful condition
prior to the plaintiff's injury; or (3) the harmful
condition was present for so long that it should have been
discovered in the exercise of reasonable care. See
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002); Keetch v. Kroger Co., 845 S.W.2d 262, 265
(Tex. 1992). The third of these avenues is known as the
"time-notice rule, " and it requires "some
proof of how long the hazard was there before liability can
be imposed on the premises owner for failing to discover and
rectify, or warn of, the dangerous condition."
Reece, 81 S.W.3d at 816 (holding that where there
was "no evidence indicating when or how the spill came
to be on the floor, " evidence was legally insufficient
to support constructive-notice element of plaintiff's
time-notice rule protects against imposing strict liability
upon premises owners, which approach the supreme court has
"clearly rejected, " and "is based on the
premise that temporal evidence best indicates whether the
owner had a reasonable opportunity to discovery and remedy a
dangerous condition." Id. "Without some
temporal evidence, there is no basis upon which the
factfinder can reasonably assess the opportunity the premises
owner had to discover the dangerous condition."
Id. Evidence that establishes only the possibility
that a dangerous condition existed long enough to give the
defendant an opportunity to discover it does not prove
constructive knowledge. See Wal-Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934, 938 (Tex. 1998).
review of the record leads us to conclude that Housour did
not present any evidence about how long the blue tape had
been allegedly worn or split before she encountered it-or
even that the tape was in fact worn or split before she
encountered it-or any evidence indicating that any Burt-Watts
employees knew of the alleged condition or were present in
close proximity to the condition prior to her fall such that
a fact finder could assess whether the employees should
reasonably have discovered it. See Reece, 81 S.W.3d
at 816 (noting that proximity evidence will often be relevant
to analysis of whether owner should reasonably have
discovered hazard, but only after plaintiff has presented
evidence of how long hazard had been present).
is also no evidence that Burt-Watts had actual knowledge of
the condition or had caused it, nor any evidence of how the
condition was created, except for Housour's speculation
that the tape had "gotten worn from, you know, stuff
rolling across" it. Considering the evidence in the
light most favorable to Housour, we hold that there is no
evidence to support a finding that Burt-Watts had actual or
constructive notice of the allegedly dangerous condition, and
the trial court accordingly properly granted Burt-Watts's
no-evidence summary-judgment motion. See id. at
816-17. We therefore need not address the other challenged
elements of Housour's claims. See Tex. R. Civ.
P. 166a(i); see also Tex. R. App. P. 47.1.
Housour did not present evidence creating a genuine issue of
material fact on an essential element of her claim, the trial
court properly ...