Court of Appeals of Texas, Fifth District, Dallas
TOBY L. FURRH, Appellant
NANCY R. NULISCH, Appellee
Appeal from the County Court at Law No. 1 Dallas County,
Texas Trial Court Cause No. CC-15-03878-A
Justices Whitehill, Schenck, and Pedersen, III  Opinion by
J. SCHENCK JUSTICE
Furrh appeals a take nothing summary judgment entered against
him in his premises liability lawsuit against Nancy Nulisch
for injuries he sustained while climbing a retractable attic
ladder at her residence. In a single issue, Furrh argues the
trial court erred in granting summary judgment because
Nulisch did not conclusively establish she had no knowledge
of an unreasonably dangerous condition, and that she
conducted a proper inspection of the ladder and its housing
before Furrh was injured. We affirm the trial court's
judgment. Because all issues are settled in law, we issue
this memorandum opinion. Tex.R.App.P. 47.4.
about April 27, 2015, Time Warner Cable dispatched Furrh and
a co-worker trainee to Nulisch's residence to install
phone, internet and cable services. Upon arriving, Furrh told
Nulisch he needed to access the attic to assess the
installation requirements. The attic is accessible by a
retractable ladder that is lowered from the ceiling by a pull
chain. After lowering the ladder, Furrh and the co-worker
each climbed up and down the attic ladder one time without
incident. Furrh then climbed the ladder a second time and
stopped near the top to survey the attic with his
cellphone's flashlight. At this point, the frame and
ladder fell to the floor below. Furrh was injured during the
fall. As a result, he underwent surgery to his shoulder,
followed by physical therapy.
this incident, Furrh sued Nulisch claiming she was negligent
in maintaining the premises. Nulisch answered denying
Furrh's claim and asserting several affirmative defenses.
After conducting discovery, Nulisch filed a motion for
traditional summary judgment. In her motion, Nulisch asserted
she had no knowledge of an unreasonably dangerous condition
and she did not fail to inspect or warn of an unknown or
latent condition. In response, Furrh maintained whether
Nulisch had actual or constructive knowledge of the defective
ladder is a question of fact precluding summary judgment.
After considering the summary judgment evidence and reviewing
the pleadings, the trial court granted Nulisch's motion
for summary judgment. Furrh filed a motion for new trial,
which was overruled by operation of law. This appeal
review de novo the trial court's summary judgment.
Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d
618, 621 (Tex. 2007); Beesley v. Hydrocarbon Separation,
Inc., 358 S.W.3d 415, 418 (Tex. App.-Dallas 2012, no
pet.). When reviewing a traditional summary judgment granted
in favor of the defendant, we determine whether the defendant
conclusively disproved at least one element of the
plaintiff's claim or conclusively proved every element of
an affirmative defense. Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995). A matter is conclusively established if
ordinary minds cannot differ as to the conclusion to be drawn
from the evidence. Beesley, 358 S.W.3d at 418. The
traditional summary judgment movant must show there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sysco
Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.
1994). In deciding whether a disputed material fact issue
exists precluding summary judgment, we must take evidence
favorable to the non-movant as true, and we must indulge
every reasonable inference and resolve any doubts in favor of
the non-movant. Sysco Food Servs., 890 S.W.2d at
800. When, as in this case, the court's order granting
summary judgment does not specify the basis for the ruling,
we will affirm the summary judgment if any of the theories
presented to the trial court are meritorious. Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
216 (Tex. 2003).
liability is a special form of negligence in which the duty
owed to the plaintiff depends on the plaintiff's status
on the premises at the time of the injury causing event.
Scott & White Mem'l Hosp. v. Fair, 310
S.W.3d 411, 412 (Tex. 2010). The plaintiff is usually
classified as either an invitee, licensee, or trespasser.
Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.
1999). "An invitee is 'one who enters on
another's land with the owner's knowledge and for the
mutual benefit of both.'" American Indus. Life
Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.
App.-Houston [14th Dist.] 2001, pet. denied) (quoting
Rosas v. Buddie's Food Store, 518 S.W.2d 534,
536 (Tex. 1975)); see also Restatement (second) of
Torts § 332 (1965).
the summary judgment evidence and the pleadings establish
Furrh had been invited to Nulisch's home to install
phone, internet and cable services. Accordingly, he occupied
the status of an invitee at the time he was injured. Premises
owners and operators owe a duty to keep their premises safe
for invitees against conditions on the property that pose
unreasonable risks of harm. Brinson Ford, Inc. v.
Alger, 228 S.W.3d 161, 162 (Tex. 2007); Wal-Mart
Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.
1998). This duty, however, does not render the premises owner
or operator an insurer of the invitee's safety. See,
e.g., Gonzalez, 968 S.W.2d at 936. Premises
owners are not strictly liable for conditions that result in
injury. Corbin v. Safeway Stores, Inc., 648 S.W.2d
292, 295 (Tex. 1983). The core of the duty depends on actual
or constructive knowledge of a dangerous condition that a
reasonable inspection would reveal. CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 101 (Tex. 2000). To prevail as the
invitee plaintiff in this case, Furrh had to prove (1) actual
or constructive knowledge of some condition on the premises
by Nulisch that posed an unreasonable risk of harm; (2)
Nulisch did not exercise reasonable care to reduce or
eliminate the risk; and (3) Nulisch's failure to use such
care proximately caused Furrh's injuries. See
Gonzalez, 968 S.W.2d at 936 (Tex. 1998) (citing
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.
is no one test for determining actual knowledge that a
condition presents an unreasonable risk of harm, but courts
generally consider whether the premises owner has received
reports of prior injuries or reports of the potential danger
presented by the condition. Univ. of Tex.-Pan Am. v.
Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam).
The actual knowledge required for premises liability is of
the dangerous condition at the time of the accident, not
merely of the possibility that a dangerous condition can
develop over time. City of Dallas v. Thompson, 210
S.W.3d 601, 603 (Tex. 2006) (per curiam).
knowledge is a substitute in the law for actual knowledge.
CMH Homes, 15 S.W.3d at 102. In premises cases
constructive knowledge can be established by showing that the
condition had existed long enough for the owner or occupier
to have discovered it upon reasonable
inspection.Id. at 102-103. Temporal
evidence, or evidence of the length of time the dangerous
condition existed, is the best indication of whether the
premises owner had a ...