Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2016-40034
consists of Chief Justice Radack and Justices Higley and
RICHARD HIGHTOWER JUSTICE
Julia Marshall and Dennis Marshall sued appellee ESA
Management, LLC (ESA) for premises defect after Julia slipped
and fell at a hotel property managed by ESA. The trial court
granted summary judgment in favor of ESA, and the Marshalls
now appeal, arguing that the trial court erred in granting
summary judgment because: (1) ESA's motion "failed
to address the unreasonably dangerous condition that the
Marshalls actually alleged"; and (2) genuine issues of
material fact exist with regard to each element of the
Marshalls' claim. Because we conclude that ESA's
motion for summary judgment properly challenged the
Marshalls' premises liability claim and that the
Marshalls failed to raise a genuine issue of material fact
regarding whether ESA had actual or constructive knowledge of
the alleged defect, we affirm.
January 1, 2015, the Marshalls, who are married, arrived in
Houston to attend a boat show, and they checked into Room 324
at the Extended Stay America hotel located near NRG Stadium
in Houston, a property that is managed by ESA. The Marshalls
alleged that, on January 2, Dennis left their room sometime
before noon to attend the boat show while Julia remained
behind at the hotel to rest. Julia woke from a nap in the
middle of the day, and without turning on any lights or
opening the curtains, she attempted to walk to the bathroom.
To do so, she had to walk past the full-sized refrigerator in
the room. The Marshalls allege that the refrigerator in their
room was defective and, "since [Julia] had last walked
by this area, [it had] leaked extensively, leaving a puddle
of water on the floor." They assert that Julia slipped
in the puddle of water, "striking her head violently,
resulting in severe and life changing injuries."
Marshalls sued ESA for premises liability, asserting that the
leaking refrigerator posed an unreasonable risk of harm about
which ESA knew or should have known and that ESA failed to
make the dangerous condition reasonably safe or to adequately
warn the Marshalls of the danger. They asserted that
ESA's breach of its duty proximately caused their harm
and sought damages for, among other things, Julia's
medical expenses, physical and mental pain, and Dennis's
loss of consortium.
moved for summary judgment, arguing that the dangerous
condition that caused Julia's injuries did not exist
until the Marshalls "had exclusive possession of the
room." ESA asserted that "[t]he undisputed evidence
is that [ESA] did not possess knowledge, actual or
constructive, of an unreasonably dangerous condition in the
Marshalls' hotel room and, therefore, [ESA] did not
breach any duty owed to [the Marshalls]." Specifically,
ESA asserted that (1) it did not have actual knowledge of the
alleged danger; (2) it did not have constructive knowledge of
the alleged danger; (3) absent notice, there was no duty to
remedy or warn of the allegedly dangerous condition; (4) as a
matter of law, ESA's acts or omissions were not a
proximate cause of Julia's injuries; and (5) Dennis's
derivative claims of loss of consortium and loss of household
services fail because Julia's claims fail.
Marshalls responded to the motion for summary judgment,
arguing that ESA had a history of failing to maintain the
"old, low-grade, leak-prone refrigerator units"
that were placed "on top of hard, linoleum floors."
They argued that the refrigerator in their room began to leak
during their stay and that Julia was injured when she slipped
in the leaked water. The Marshalls asserted that ESA had both
actual and constructive knowledge of the dangerous condition
and failed to exercise reasonable care to remedy that
condition. They further argued that, even if ESA was not
aware of the specific leak causing Julia's fall, there
was still evidence that ESA was aware, or should have been
aware, of a high risk that a dangerous condition would occur
because of the history of leaking refrigerators. They argued,
"[t]here is considerable evidence that the refrigerators
at ESA were prone to malfunctions and susceptible to leakage
on the day Julia Marshall fell" and that ESA had actual
and constructive knowledge that "its refrigerator setup
posed an unreasonable risk of harm to its guests."
then replied to the Marshalls' response, raising
objections to the Marshalls' summary judgment evidence
and, among other things, addressing the Marshalls'
complaints regarding the refrigerator setup itself.
summary judgment evidence included, among other items, the
deposition testimony of the Marshalls, Sergio Jimenez (a
maintenance worker for ESA), Sheila Shepard (a housekeeper
for ESA), Thomas Gerald Lauersdorf, III (the manager on duty
at the time), and maintenance records.
testified that he and his wife checked in to their room on
January 1, 2015, and put away drinks and lunch meat that they
had brought to their room. They did not notice anything wrong
with the refrigerator at that time. He left for the boat show
on January 2, which started sometime between 11:00 am and
noon. Julia stayed behind in the room to rest. When Dennis
left, he didn't notice anything wrong with the
refrigerator, nor did he notice any water on the floor. He
spoke with Julia by phone later that afternoon; she did not
mention falling and told him only that she had been sleeping.
He returned to the room around 9:00 p.m., after the boat show
was over for the day, and that was when he realized Julia was
hurt. She told him at that time that she had slipped in water
by the refrigerator and that the hotel had sent someone who
"had a bunch of towels with them" and "put
[the towels] on the water on the floor." Dennis
acknowledged that he was not there when the fall occurred, so
he only knew what Julia had told him about the circumstances
surrounding her fall.
requested that the hotel create an incident report, which he
received on January 7, 2015, five days after the fall. Dennis
stated that he and Julia kept a towel by the refrigerator for
the remainder of their stay and that he would "[c]hange
it out every day. It would be damp, wet." He testified
that "[i]t looked like the bottom shelf in the
refrigerator would freeze. And then as you started using it,
it would melt. For some reason the refrigerator was
malfunctioning and the inside was freezing and the water was
running from the door. Like it would melt and run out the
front." He testified that he reported the malfunctioning
refrigerator to the front desk, but, to his knowledge, no one
ever came to check it. He testified that other members of
their party who were staying in another room at the same
hotel also "wound up having a towel in front of their
[refrigerator] as well." The Marshalls checked out as
planned on January 12, 2015.
testified that she does not recall the details of her fall.
She testified, however, that she made some notes following
her fall as a "coping mechanism" because she was
confused and experiencing memory problems after her fall.
Those notes indicated that she fell on the way to the
bathroom when she slipped on the wet floor. The notes also
indicated that after she attempted to call 9-1-1, she instead
reached the front desk. She wrote that a man came in and
"[h]e had towels. Cleaned up floor and said [the]
refrigerator leaked and that we'd need to keep towels by
it so water would not spread." She also testified that
she did not feel like going to the hospital and did not
receive medical treatment at that time.
also submitted her sworn declaration as summary judgment
evidence. In her declaration, she stated that she called for
help after her fall:
I told the person at the hotel desk that I had fallen and was
scared. I did not tell the person how I had fallen and did
not mention a leaking refrigerator.
After I got off the phone, a man who worked at the hotel came
into my room. The man from the hotel brought towels with him.
He said the refrigerator in my room leaked and that he would
need to keep towels by it so that the water would not spread.
He then put towels on the floor by the refrigerator.
produced some redacted maintenance records. The affidavit of
the regional manager that accompanied the records indicated
that the electronic maintenance logs were kept in the regular
course of business and covered the period of time between
January 2, 2010, and January 2, 2015. The records indicated
that there were no previous complaints about the refrigerator
in Room 324 in the five years before Julia's fall. The
log further showed that Room 324 received "preventative
maintenance" in December 2014 and was last serviced by
ESA staff two days before the Marshalls checked in, and there
were no concerns regarding the refrigerator noted at that
time. In the years preceding Julia's fall, the hotel
logged approximately twenty-five complaints about
non-functioning refrigerators for all 170 of the hotel's
rooms, but only two of those complaints indicated that the
room's refrigerator was leaking in some way. There was no
evidence of the nature or extent of these two previously
reported leaks in the maintenance records. There was also no
evidence of any prior guests being injured as a result of a
refrigerator leak or malfunction.
the assistant manager at the time, testified that he was the
one who received Julia's call after she fell. He walked
to her room immediately after receiving the call. Julia told
him she had slipped in front of the refrigerator, and he
noticed a puddle of water in front of it. He could not recall
whether the water was coming from the refrigerator or not,
observing that the sink was also nearby. He said that he was
unable to tell whether it came from the sink or the
refrigerator, stating, "From what I remember, it was
just a singular puddle, so it's-it's hard to find the
source on that." He testified that he had the water
cleaned up and "sent engineering out." Lauersdorf
further testified that, at the time he checked on Julia, she
told him she was fine, did not need medical care, and did not
want to fill out an incident report. Later, however, at her
husband's request, Lauersdorf filled out the incident
report, but she "still refused medical attention after
also testified that the hotel kept additional appliances on
hand to replace the ones in the room as necessary. Regarding
refrigerators, he stated that how often they were replaced
depended on "how many were going out" and that they
were replaced "as needed." He stated, "Maybe,
as I can recall, one a week, two a week, at most," and
he later clarified, "It could be a week where there
weren't any." Regarding the types of problems that
the property would have with refrigerators, he stated
I mean, there's all-I mean, there's the fridge just
isn't cooling. There is-Just like with any other fridge,
there can be something where there-it causes a leak. Freezer,
clogged water line; wear and tear; guest could damage it. It
could be a fair amount of different things, I guess, that
testified that he did not know how old the refrigerators were
at the time of Julia's fall and that he did not know how
long refrigerators were supposed to last. He further
testified that if a refrigerator leaked, ESA "would do
everything [it] could to fix it." He further stated,
"every refrigerator's on an individual case. . . .
I'm not sure if that means that just because the
refrigerator's at a certain age we should just,
necessarily, start replacing them or anything like
that." Lauersdorf testified that he was unsure whether
the number of refrigerator problems was a "high
number," and he was unwilling to testify that he
believed ESA's refrigerators needed repairs on "a
regular basis." He stated that the hotel had to replace
a lot of things ranging from mattresses to lamps.
the specific refrigerator in Room 324, Lauersdorf could not
recall that there were any "ongoing problems" with
the refrigerator before Julia's fall. He testified that
he was not aware of what happened to the refrigerator after
Julia's fall, but he could not imagine that it had been
left in disrepair. He was not sure if it had been replaced.
Shepard, a housekeeper at the property, testified that the
extended stay hotel did not typically provide daily
housekeeping. She testified that rooms would be cleaned in
between customers and after a guest had been in the room for
seven or eight days. The rooms could be cleaned more
frequently if the customer requested and paid for additional
housekeeping service. She and the other housekeepers would be
given a list of rooms to clean at the start of a shift, and
they would only clean the rooms they were assigned.
the refrigerators, Sheila testified that she saw
refrigerators being replaced during her time at ESA, but
specifically for the time frame of late 2014 through 2015,
she did not remember any of the refrigerators in the rooms
that she cleaned needing to be replaced. Sheila had no
personal knowledge regarding Julia's fall or the
condition of the room or the refrigerator at the time the
Marshalls checked in. She testified generally that she had
never heard any complaints relating to leaking refrigerators.
She further testified:
[Q]: Have you notice leaking refrigerators.
[A]: Not recently.
[Q]: Not recently. But sometime ago, did you?
[A]: I've seen.
[Q]: Right. Because there was a time that the refrigerators
were leaking a fair amount. . . . Is that fair?
[A]: That's fair.
. . . .
[Q]: And it didn't matter which room you were in, the-the
refrigerators were kind of on their last legs and one of the
problems that came up is: they were leaking.
[Q]: And you would go to a room and see water pooling in
front of these refrigerators and you put it on your
. . . ...