Appeal from the 53rd District Court Travis County, Texas
Trial Court Cause No. D-1-GN-16-005280
consists of Justices Christopher, Jewell, and Bourliot.
Linda and Manuel Castro appeal a summary judgment dismissing
their slip-and-fall lawsuit. The only issue is whether
appellee H.E.B. Grocery Company, L.P., d/b/a HEB
("HEB") had actual or constructive notice of the
alleged dangerous condition on the premises, and the Castros
contend they presented sufficient evidence to create a fact
issue for the jury. We conclude the evidence presented fails
to raise a genuine issue of material fact that appellee was
actually or constructively aware of the alleged hazard.
Therefore, we affirm the judgment.
Linda and Manuel Castro were shopping at a grocery store
owned by HEB and located on West Highway 71 in Austin. While
perusing produce, Linda slipped and fell on a leaf of kale or
lettuce. Manuel was walking about ten feet in front of Linda
and did not see her fall, nor had he noticed anything on the
floor when he walked over the area where Linda slipped. An
HEB employee, Jaye Debatista, was stocking
lettuce five to fifteen feet away from where Linda
fell. Out of the corner of his eye, Debatista saw Linda fall,
but he did not have a direct line of sight and could not see
what caused her fall. Store manager-in-charge Joseph Lagasse
arrived within a few minutes, and there is no evidence that
he saw Linda fall. No witness saw the lettuce before Linda
slipped on it, nor could anyone posit how it came to be on
the floor or how long it had been there before the accident.
The lettuce was on the floor in front of an asparagus and
broccoli display, which was several feet away from the
display where Debatista was stocking lettuce. Linda alleged
she injured her knee, wrists, neck, and back in the fall.
Castros sued HEB and asserted a negligence cause of action
based on an alleged premises defect. The Castros alleged that
the lettuce was an unreasonably dangerous condition, of which
HEB knew or should have known, and that HEB's failure to
correct or warn of the hazard proximately caused Linda
injury. HEB answered and later filed simultaneous motions
seeking both no-evidence and traditional summary judgment.
Both motions challenged the actual or constructive notice
element of the Castros' premises liability claim. HEB
asserted that the Castros could present no evidence that it
either knew or should have known of the alleged dangerous
condition, the lettuce on the floor.
Castros responded to HEB's motions and asserted that a
genuine issue of material fact existed regarding whether HEB
had actual or constructive knowledge of the lettuce on the
floor. The Castros provided evidence in support of their
response, including photographs of the lettuce leaf,
deposition testimony, and the HEB incident report.
a hearing, the trial court granted HEB's summary judgment
motions without stating the basis for its ruling, signing a
final take-nothing judgment in HEB's favor. The Castros
filed a timely motion for clarification and reconsideration,
arguing, as is relevant here, that they pleaded both a
negligent activity claim and a premises-defect claim, and
that the negligent activity claim should have survived
summary judgment. The trial court denied the motion. This
appeal timely followed.
Castros assert three issues on appeal. Several arguments in
their brief, however, lack clarity and do not appear in their
summary judgment response. We cannot reverse a summary
judgment on grounds not raised in the summary judgment
response. Tex.R.Civ.P. 166a(c). Therefore, we will address
the grounds the Castros asserted in their summary judgment
response and that, as best we can discern, are briefed in our
review de novo a trial court's decision to grant summary
judgment. Ferguson v. Bldg. Materials Corp. of Am.,
295 S.W.3d 642, 644 (Tex. 2009) (per curiam). We consider the
evidence in the light most favorable to the non-movant,
indulging reasonable inferences and resolving doubts in the
non-movant's favor. Cantey Hanger, LLP v. Byrd,
467 S.W.3d 477, 481 (Tex. 2015). We credit evidence favorable
to the non-movant if reasonable fact finders could, and we
disregard contrary evidence unless reasonable fact finders
could not. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as
here, the trial court does not specify the grounds for its
summary judgment, we must affirm if any of the theories
presented to the trial court and preserved for appellate
review are meritorious. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
party files both traditional and no-evidence motions, we
first review the trial court's decision under the
no-evidence standard. See Tex. R. Civ. P. 166a(i);
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013); Cox v. H.E.B. Grocery, L.P., No.
03-13-00714-CV, 2014 WL 4362884, at *2 (Tex. App.-Austin Aug.
27, 2014, no pet.) (mem. op.). If we determine that the
no-evidence summary judgment was properly granted, we do not
reach arguments under the traditional motion for summary
judgment. Merriman, 407 S.W.3d at 248; Ford
Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004).
no-evidence motion for summary judgment, the movant asserts
that no evidence supports one or more essential elements of
the claims for which the non-movant bears the burden of proof
at trial. See Tex. R. Civ. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
The non-movant then must present more than a scintilla of
probative evidence that raises a genuine issue of material
fact supporting each element contested in the motion. See
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d
167, 172 (Tex. 2003); Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 & n.4 (Tex. 2002). A
no-evidence motion should be granted "when (a) there is
a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere
scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact." King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
traditional motion, the movant must establish that no genuine
issue of material fact exists and that the movant is entitled
to judgment as a matter of law. Tex.R.Civ.P. 166a(c). If the
movant establishes its right to judgment as a matter of law,
the burden shifts to the nonmovant to raise a genuine issue
of material fact sufficient to defeat summary judgment.
See M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
discussion below, we review the trial court's decision
under the no-evidence standard unless otherwise stated.
See Tex. R. ...