Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2015-18721
consists of Chief Justice Radack and Justices Keyes and
V. KEYES JUSTICE .
personal injury suit, Jimaree Parrish sued SMG for negligence
and premises liability after she allegedly tripped over the
corner of a rubber floor mat at the Houston Livestock Show
and Rodeo. SMG moved for traditional and no- evidence summary
judgment on Parrish's claims, and the trial court
rendered summary judgment in SMG's favor. In three
issues, Parrish argues that: (1) the trial court erroneously
granted no-evidence summary judgment because she raised a
fact issue that SMG owed her a duty; (2) the trial court
erroneously granted no-evidence summary judgment because she
raised a fact issue that SMG had knowledge of a dangerous
condition on the property; and (3) a need exists for the good
faith extension of the law concerning the duty that a lessor
owes to an invitee of its lessee.
Harris County Sports & Convention Corporation owns NRG
Park, which is composed of NRG Stadium, NRG Center, and NRG
Arena. It hired SMG as its management company to oversee the
day-to-day operations of the complex. Pursuant to a lease
agreement with Harris County, the Houston Livestock Show and
Rodeo, Inc. ("the Rodeo") operates the Houston
Livestock Show and Rodeo at NRG Park for three weeks every
Center has concrete floors, and the Rodeo's lease
agreement obligates SMG to install rubber mats on the floors.
When the Rodeo is not operating, SMG rolls up the rubber mats
and stores them. During the preparation for the event, the
Rodeo typically directs SMG where to place the floor mats.
SMG unrolls the mats and uses industrial duct tape to tape
the ends of the mats to each other. SMG does not use any kind
of adhesive between the bottom of the mats and the concrete
floor. Once the event starts, contractually the Rodeo bears
the responsibility for maintaining the mats, but SMG
personnel assist, and when Rodeo and SMG personnel see pieces
of duct tape along the ends of the mats that have lost
adhesion, the workers will replace the tape. Before each
yearly event, SMG provides the Rodeo with twenty to
twenty-five cases of duct tape to use on the ends of the
floor mats throughout the event.
March 15, 2014, Jimaree Parrish attended the Rodeo with her
daughter and other relatives. She alleged that, as she was
walking in NRG Center, a floor mat had curled up at the
corner and was hidden from view by sawdust and wood shavings
on the floor. She tripped over the corner of this mat. She
fell to the ground and lost consciousness. She also fractured
her left orbital socket, fractured her left arm, tore her
left rotator cuff, and injured her knee, requiring knee
sued the Rodeo on March 31, 2015, and asserted causes of
action for negligence and premises liability. Parrish alleged
that the Rodeo was negligent by "failing to keep the
floor panels level on the grounds where people walk, "
by "covering the floor in large amounts of sawdust
blocking from vision defects in the floor paneling, " by
"failing to properly maintain and secure the floor
panels on the grounds where people walk, " by
"failing to remove the sawdust from the floor so that
defects in the floor could be seen, " and by
"failing to post signs warning of an uneven floor."
Parrish also alleged that a condition on the premises posed
an unreasonable risk of harm and that the Rodeo knew or
reasonably should have known of the danger, but it failed to
adequately warn her of the condition or to make the condition
reasonably safe. In October 2015, Parrish amended her
petition to assert the same causes of action against SMG, as
well as against the Rodeo.
moved for traditional and no-evidence summary judgment. SMG
argued that it did not owe Parrish a duty because SMG was not
in possession of NRG Park at the time of Parrish's
injury; instead, the Rodeo had leased the premises and was in
control. It also argued that, to the extent Parrish pleaded a
negligent activity claim, she could present no evidence of a
negligent activity that occurred contemporaneously with her
injury. SMG also argued that summary judgment was proper on
Parrish's premises liability claim because Parrish could
produce no evidence that SMG had actual or constructive
knowledge of a dangerous condition on the premises.
Specifically, SMG pointed to (1) deposition testimony from
Michael DeMarco, the Rodeo's Executive Director of
Operations, who testified that this particular incident was
the first time a Rodeo patron had tripped on the floor mats,
and to (2) deposition testimony from Richard Fredette,
SMG's Director of Operations at NRG Park, who testified
that, although he was aware of prior instances in which the
duct tape holding the floor mats down had lost its adhesion
and come undone, he was not aware of prior instances in which
the floor mats then rolled up as a result.
filed a response to SMG's summary judgment motion.
Parrish argued that SMG knew the duct tape holding down the
floor mats would fail and, thus, both SMG and the Rodeo had
personnel walking through NRG Park replacing duct tape
throughout the event. She argued that SMG "had a
superior knowledge of the risk over the patrons attending the
stock show who had no way to know the installation of the
flooring was improper and posed an unreasonable risk of
failure." She also argued that SMG had a duty to install
the floor mats in conformity with the manufacturer's
specifications and in a reasonably prudent manner, a duty to
"take affirmative action to control the dangerous
condition of failed flooring that was created by SMG's
unreasonable and improper installation of the flooring,
" a duty to warn patrons that the mats were "likely
to stick into the air and create a tripping hazard, " a
duty not to cover the floor mats with wood shavings that
could obscure areas where the duct tape had failed, and a
duty to warn patrons that the wood shavings could obscure
dangerous floor conditions.
also argued that the rule cited by SMG, that a lessor is not
responsible for the condition of the premises once it turns
the property over to a lessee, has an exception, namely if
the lessor makes repairs to the leased premises, the lessor
owes a duty to use reasonable care in making those repairs.
She argued that SMG, by replacing duct tape, "was
proactively making repairs throughout the stock show, "
but it was making those repairs "in the same negligent
manner as the original installation" of the floor mats.
also argued that "[b]ecause SMG installed the flooring
in an unreasonable manner and against the manufacturer's
recommendations, it created the dangerous condition and by
Texas law, it is presumed to have knowledge of the
condition." She pointed to the depositions of Fredette
and DeMarco, in which they acknowledged that both SMG and
Rodeo personnel walked the premises and replaced duct tape
that had lost its adhesion. She argued that "each
defendant knew the duct tape would fail and were always
looking to see what areas were failing on any given
summary judgment evidence, Parrish attached her affidavit, as
well as the affidavits of Jennifer Wofford, her daughter,
Jack Levy, the husband of one of Parrish's cousins, and
David Parker, Levy's friend, all of whom were at the
Rodeo on the date of the incident. Wofford averred:
As we were walking into the building where the animals were
being kept, I noticed wood shavings covering the floor and I
could feel we were walking on some type of rubber flooring.
As we continued walking, suddenly and without any warning
Jimaree fell forward to the floor and was seriously injured.
Blood oozed from her head and she was totally unconscious. I
immediately began to call for help and tried to attend to
her, but she was not responsive at all. Shortly afterwards,
emergency personnel came and started working on her.
At this time I looked to see what had caused her to fall and
noticed that a corner piece of a rubber floor mat was
sticking into the air, covered by the wood shavings, ...