Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Case No. 17-DCV-240598
consists of Justices Lloyd, Landau, and Countiss.
BETH LANDAU JUSTICE
Mendoza Hernandez sued Kroger Texas, L.P. after slipping on
the wet floor of a Kroger grocery store and suffering
injuries. Kroger filed a no-evidence motion for summary
judgment focused on the knowledge element of Mendoza's
premises-liability claim. Kroger argued that Mendoza
presented no evidence that Kroger had actual or constructive
knowledge of a dangerous condition on its premises. The trial
court granted Kroger's no-evidence motion and entered a
final, take-nothing judgment against Mendoza, who appealed.
first issue, Mendoza challenges summary judgment on her
premises-liability claim. In her second issue, she contends
the trial court erred in granting a final, take-nothing
judgment because her petition asserted two additional causes
of action that Kroger did not challenge through its
reverse and remand.
Mendoza Hernandez visited a Kroger grocery store around 9
p.m. one evening to pick up some items. As she was checking
out, she realized she had picked up the wrong type of milk.
She walked back to the milk display, selected a different
milk, and walked down Aisle Four to return to the cash
register. Unbeknownst to Mendoza, there was an accumulation
of water on the tile floor midway down Aisle Four in front of
a self-serve water dispenser. Mendoza slipped on the water,
fell to the floor, and injured her back, knees, and hand.
Four is a central aisle lined with various drink products.
Midway down the aisle, there is a self-serve Glacier-brand
water-tank refill station positioned flush with the outer
edge of the shelving. The water station is connected to the
store's waterline. Customers can place containers in
front of the refill station, fill the containers with water,
and lift the filled containers into their grocery carts or
otherwise transport them from the store.
to Kroger's store manager at the time, Deanna David,
customers have been known to spill water in front of the
Glacier water station. She stated that Kroger keeps a mat in
front of the water dispenser to address the fall hazard.
to Kroger's closing manager, Jamal Akhter, who was
working the evening of Mendoza's fall, the tile near the
refill station routinely had to be cleaned and dried-usually
once or twice a day-because spills would go beyond the
mat's border. Akhter said the managers and cleaning staff
"pay attention to that aisle especially" because
"there's a water dispenser" on the aisle.
Akhter added, though, that, he had no knowledge of any
incidents being reported of customers falling on Aisle Four
before Mendoza's fall.
day of Mendoza's fall, Akhter arrived at work at 4 p.m.
and walked the entire store, looking for and correcting any
found issues. He walked the store a "couple" times
more before Mendoza's 9 p.m. fall. During his store walks
that evening, he never saw a spill on Aisle Four.
said he was not the only employee walking the store that
evening. By policy, Kroger's cleaning staff is required
to walk the floor every two hours. The cleaning staff is
instructed to clean any spills they find on their walks.
According to Akhter, the cleaning staff member who was
working the evening of Mendoza's fall reported that he
had not seen any spills that evening.
does not dispute that there was water on the floor or that
Mendoza slipped on the water. Instead, it argues Mendoza has
no evidence Kroger had actual or constructive knowledge of an
unreasonably dangerous condition to move forward with her
first issue, Mendoza argues the trial court erred in granting
a no-evidence summary judgment to Kroger because she
presented more than a scintilla of evidence that Kroger had
actual or constructive knowledge of an unreasonably dangerous
condition on its premises. Before addressing the level of
proof Mendoza provided on the knowledge element, we consider
the appropriate standard of review and the general elements
of a premises-liability claim.
Standard of review
review summary judgments de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A
no-evidence motion for summary judgment must be granted if,
after adequate time for discovery, the moving party asserts
that there is no evidence of one or more specified elements
of a claim or defense on which the adverse party would have
the burden of proof at trial and the respondent produces no
summary-judgment evidence raising a genuine issue of material
fact on those elements. Tex.R.Civ.P. 166(a)(i); LMB, Ltd.
v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
who files a no-evidence summary-judgment motion pursuant to
rule 166a(i) has essentially requested a pretrial directed
verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
581 (Tex. 2006). When the movant files its motion in proper
form, the burden shifts to the nonmovant to defeat the motion
by presenting evidence that raises an issue of material fact
regarding the elements challenged by the motion. Id.
at 582; Weaver v. Highlands Ins. Co., 4 S.W.3d 826,
829-30 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We
review the evidence presented by the summary-judgment record
in the light most favorable to the party against whom summary
judgment was rendered, crediting evidence favorable to that
party if reasonable jurors could and disregarding contrary
evidence unless reasonable jurors could not. Mack
Trucks, 206 S.W.3d at 582 (citing City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
Elements of a premises-liability claim
begin, we recognize a distinction between negligent-activity
claims and premises-defect claims, which are independent
theories of recovery. See Gen. Elec. Co. v. Moritz,
257 S.W.3d 211, 214-15 (Tex. 2008); Clayton W. Williams,
Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997)
(noting "two types of negligence in failing to keep the
premises safe: that arising from an activity on the premises,
and that arising from a premises defect"). "The
lines between negligent activity and premises [defect]
liability are sometimes unclear," but, in a general
sense, "negligent activity encompasses a malfeasance
theory based on affirmative, contemporaneous conduct by the
owner that caused the injury, while premises [defect]
liability encompasses a nonfeasance theory, based on the
owner's failure to take measures to make the property
safe." Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010).
finding of liability for a negligent-activity theory
"requires that the person have been injured by or as a
contemporaneous result of the activity itself rather than by
a condition created by the activity." Keetch v.
Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). "In
contrast, to assess liability in negligence for a premises
defect, an injury must occur as a result of a dangerous
condition that the defendant knows or should have known to
exist yet fails to reasonably warn of the condition or take
reasonable measures to remedy it." Oncor Elec.
Delivery Co., ...