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Castro v. H.E.B. Grocery Co., L.P.

Court of Appeals of Texas, Fourteenth District

June 18, 2019


          On Appeal from the 53rd District Court Travis County, Texas Trial Court Cause No. D-1-GN-16-005280

          Panel consists of Justices Christopher, Jewell, and Bourliot.


          Kevin Jewell Justice.

         Appellants 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.


         Appellants 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[1] 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.

         The 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.

         The 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.

         Following 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.


         The 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 court.

         Standard of Review

         We 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).

         When a 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).

         In a 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).

         In a 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).

         In our discussion below, we review the trial court's decision under the no-evidence standard unless otherwise stated. See Tex. R. ...

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