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Parrish v. SMG

Court of Appeals of Texas, First District

December 7, 2017

JIMAREE PARRISH, Appellant
v.
SMG, Appellee

         On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2015-18721

          Panel consists of Chief Justice Radack and Justices Keyes and Caughey.

          MEMORANDUM OPINION

          EVELYN V. KEYES JUSTICE .

         In this 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.

         We affirm.

         Background

         The 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 March.

         NRG 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.

         On 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 replacement surgery.

         Parrish 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.[1]

         SMG 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.

         Parrish 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.

         Parrish 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.

         Parrish 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 day."

         As 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, ...

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