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Hernandez v. Kroger Texas, L.P.

Court of Appeals of Texas, First District

August 22, 2019

KROGER TEXAS, L.P., Appellee

          On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 17-DCV-240598

          Panel consists of Justices Lloyd, Landau, and Countiss.



         Julieth 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.

         In her 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 summary-judgment motion.

         We reverse and remand.


         Julieth 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.

         Aisle 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.[1] 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.

         According 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.

         According 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.

         On the 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.

          Akhter 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.

         Kroger 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 suit.

         Premises Liability

         In 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.

         A. Standard of review

         We 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).

         A party 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)).

         B. Elements of a premises-liability claim

         To 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).

         A 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., ...

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