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Marshall v. ESA Management, LLC

Court of Appeals of Texas, First District

July 2, 2019


          On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2016-40034

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.



         Appellants 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.


         On 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."

         The 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.

         ESA 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.

         The 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."

         ESA 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.

         The 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.

         Dennis 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.

         Dennis 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.

         Julia 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.

         Julia 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.

         ESA 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.

         Lauersdorf, 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 that point."

         Lauersdorf 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 could happen.

         Lauersdorf 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.

         Regarding 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.

         Sheila 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.

         Regarding 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.
[A]: Yes.
[Q]: And you would go to a room and see water pooling in front of these refrigerators and you put it on your [cleaning] form.
[A]: Yes.
. . . ...

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