LISA SHOEMAKER v. KOHL DEPARTMENT STORES INC

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Court of Appeals of Texas, Dallas.

LISA SHOEMAKER, Appellant v. KOHL'S DEPARTMENT STORES, INC., Appellee

No. 05-16-00273-CV

Decided: March 31, 2017

Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

MEMORANDUM OPINION

Opinion by Justice Myers

In this premises liability action, appellant Lisa Shoemaker appeals the trial court's order granting summary judgment in favor of appellee Kohl's Department Stores, Inc. In one issue, Shoemaker argues the court erred by granting Kohl's summary judgment motion. We affirm.

DISCUSSION

In her only issue, Shoemaker contends the trial court erred by granting Kohl's no-evidence motion for summary judgment.

The same legal sufficiency standard of review that is applied when reviewing a directed verdict is also applied when reviewing a no-evidence summary judgment. See Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.––Dallas 2009, pet. denied) (op. on motion for reh'g); RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 829 (Tex. App.––Dallas 2006, no pet.). When reviewing a no-evidence summary judgment, we must determine whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. Tex. Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d at 833. We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam); Wal–Mart, Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We view all of the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregard all contrary evidence and inferences. See Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See Smith, 288 S.W.3d at 424. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Merrell Dow, 953 S.W.2d at 711. When, as in this case, the trial court's order granting summary judgment does not specify the grounds relied on, we will affirm the summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000); Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.––Dallas 2012, pet. denied).

A property owner's duty is decided by the court as a question of law and is dependent on factors like foreseeability, risk of injury, and the burden on the owner. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). Generally, premises owners have a duty to protect invitees from, or warn them of, conditions posing unreasonable risks of harm if the owners knew of the conditions or, in the exercise of reasonable care, should have known of them. See TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764–65 (Tex. 2009). To recover on a premises liability theory, the plaintiff must establish that the injury resulted from a condition of the premises. Keetch v. The Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). The plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); see also CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

The duty owed by a property owner is to exercise reasonable care to protect against dangerous conditions on the premises that create an unreasonable risk of harm which it knew about or, by the exercise of reasonable care, would have discovered. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The threshold requirement for a premises liability claim is the existence of actual or constructive knowledge of a condition on the premises. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). “An owner/occupier cannot breach a duty that it does not owe, and it does not owe a duty to correct an alleged dangerous condition of which it is not aware.” Id. at 4; Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589, 592 (Tex. App.—Dallas 2013, pet. denied). Ordinarily, an unreasonably dangerous condition for which a premises owner may be liable is the condition at the time and place injury occurs, not some antecedent situation that produced the condition. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006).

A condition poses an unreasonable risk of harm when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 306, 646 (Tex. App.––Houston [1st Dist.] 2005, pet. denied) (quoting Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)) (internal quotation marks omitted). “Foreseeability in this context ‘does not require that the exact sequence of events that produced an injury be foreseeable.’ Instead, only the general danger must be foreseeable.” Id. (quoting Cnty. of Cameron, 80 S.W.3d at 556) (internal citations omitted). Evidence of a similar injury or complaint caused by the condition is probative on the question of whether the condition posed an unreasonable risk of harm. Id.; see also Klorer, 717 S.W.2d at 761. Whether a particular condition poses an unreasonable risk of harm is generally fact specific, and there is no definitive test for determining whether a specific condition presents an unreasonable risk of harm. Hall, 177 S.W.3d at 646 (citing Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.––Austin 2000, pet. denied)).

The evidence shows that Shoemaker went to a Kohl's Department Store in Frisco, Texas, on June 1, 2012, to change the address on her credit card account. She testified in her deposition that she was directed by a store employee in the customer service area of the store to use a telephone in the customer service area for that purpose. She sat for “at least 20 minutes” in a chair provided by Kohl's while on the phone, waiting on hold for someone to assist her. She remembered looking over at a store employee at one point and asking if they could assist her because she was on her lunch break and needed to return to work. Shoemaker waited on hold “[p]robably another 20 minutes” before she decided to give up and return to work. Shoemaker stated that she was sitting “straight back” in the chair and her feet were on the floor; she was not leaning forward or back. When she went to hang the phone up, the chair “just flipped back out,” “slid out from under [her],” or “just slipped out from under [her].” Shoemaker said she landed on the floor on her buttocks and lower back, catching herself with her hands. Shoemaker testified that she was familiar with the customer service area of the Kohl's store and that the concrete floor was “[v]ery shiny,” “[v]ery nice,” and was kept clean. She attributed her fall, at least in part, to “the slick floor.” She also speculated that there could have been something wrong with the chair.

Afrika Gilbert, an employee who had worked at Kohl's for almost ten years, and had been at the Frisco location for five of those years, recalled that Shoemaker filled out an accident report form after the incident. In the “Kohl's Customer Incident Report,” signed by Shoemaker on June 1, 2012, the incident is described as follows: “Sitting in chair at gift registry, reached for the phone & chair slipped. Customer fell on rear end & caught self with hands.” Under the space provided for injuries, it states that there were injuries to the “lower back, hips, buttocks.” In a witness statement attached to the report, another store employee, Katherine Redmond, stated that she saw “a customer sitting on the end of the chair and the chair slide [sic] out from under her. She was in the customer service area.” Redmond added that she asked this customer “three separate times if she was ok and she said she was fine.”

Kohl's contends there is no evidence a condition on the premises posed an unreasonable risk of harm, or that it had actual or constructive knowledge of the allegedly dangerous condition. Shoemaker argues that a chair should not slide out from underneath the occupant just because the occupant moves to hang up a phone. She maintains that this evidence is sufficient to create a fact issue as to whether that chair at that location on that floor presented an unreasonable risk of harm––i.e., the evidence is sufficient to allow reasonable people to differ regarding whether that chair, as provided by Kohl's for its customer's use, presented a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.

But the fact that Shoemaker fell is not, by itself, proof of an unreasonably dangerous condition. As the Texas Supreme Court has stated, “the fact an accident happens is no evidence that there was an unreasonable risk of such an occurrence; because almost any activity involves some risk of harm.” Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1968); see also H.E.B. Food Stores, Inc. v. Flores, 661 S.W.2d 297, 300 (Tex. App.––Corpus Christi 1983, writ dism'd); Ogueri v. Texas S. Univ., No. 01–10–00228–CV, 2011 WL 1233568, at *5 n. 4 (Tex. App.––Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.); Smylie v. First Interstate Bank, Tex., No. 14–99–00713–CV, 2000 WL 1707308, at *2 (Tex. App.––Houston [14th Dist.] Nov. 16, 2000, no pet.). We have applied this rule in other premises liability cases. See, e.g., Warren v. Carlson Restaurants, Inc., No. 05–14–01232–CV, 2015 WL 9590579, at *2 (Tex. App.––Dallas Dec. 30, 2015, no pet.) (mem. op.) (plaintiff's fall on ramp outside of restaurant's main entrance, standing alone, was no evidence that ramp was unreasonably dangerous); Williams v. Adventure Holdings, L.L.C., No. 05–12–01610–CV, 2014 WL 1607374, at *4–5 (Tex. App.—Dallas Apr. 22, 2014, pet. denied) (mem. op.) (that an escalator injured a child was itself no evidence that escalator posed an unreasonable risk of harm); Bowen v. Sabre Realty Mgmt., Inc., No. 05–08–00499–CV, 2009 WL 1058736, at *2 (Tex. App.—Dallas Apr. 21, 2009, pet. denied) (mem. op.) (that a person fell on an outside staircase that had been covered with sand and salt was not evidence that staircase was unreasonably dangerous).

In support of her contention that she presented sufficient evidence to raise a fact issue on the “ ‘unreasonably dangerous condition’ element,” Shoemaker cites, among other authorities, Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694 (Tex. App.––Houston [1st Dist.] 2011, no pet.). The appellant in Farrar, a postal worker, appealed a summary judgment on his premises liability claim, in which he alleged that he slipped and fell while walking on the appellee's wet, recently painted wheelchair ramp. Id. at 698–99. The court of appeals reversed the summary judgment, concluding the evidence raised a fact issue as to whether the ramp was a dangerous condition because the painted wheelchair ramp was slippery when wet and it was foreseeable it would be wet from rain. See id. at 701–02. Significantly, however, the evidence in that case showed that, after falling on the ramp, the postal worker had been informed by an employee of the appellee “that earlier that morning, a man checking the building's fire alarm system had also slipped on the ramp.” Id. at 698.

As the Farrar court noted, evidence of a similar injury or complaint attributable to the same condition is probative on the question of whether a condition posed an unreasonable risk of harm. See, e.g., Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex. 1970); Hall, 177 S.W.3d at 646. In this case, however, there is no such evidence. Afrika Gilbert stated that she was aware of no falls in the customer service area of the Kohl's store or anywhere else in the store:

Q. Do you know of anybody else who's fallen there in the customer service area?

A. No one.

Q. Do you know of anybody who has had a––or fallen from a chair there at the Kohl's store there in Frisco?

A. In the five years that I've been there?

Q. Yes, ma'am.

A. No.

Q. Have you heard of anybody else falling at the Frisco location?

A. No.

Q. Have you heard of anybody falling out of a chair in the Frisco location before you got there?

A. No.

Q. Have you heard of anybody falling out of a chair at any Kohl's store?

A. No.

Shoemaker, furthermore, does not direct us to any summary judgment evidence showing that anyone was previously injured in the customer service area of the Kohl's store or anywhere else in the store.

Another case cited by Shoemaker is Pipkin v. Kroger, 383 S.W.3d 655 (Tex. App.––Houston [1st Dist.] 2012, pet. denied). In Pipkin, the court of appeals overturned a summary judgment for the defendant where its employee testified that she had cleaned up ice that had fallen on the floor and then placed a caution sign to warn others of the potential hazard before the plaintiff's fall occurred. Id. at 670. Concluding that a material fact issue existed as to whether there was an unreasonably dangerous condition, the court cited a number of cases for the well-recognized proposition that “[a] foreign substance on a floor can be an unreasonably dangerous condition.” Id. at 672.1

In this case, by contrast, there is no summary judgment evidence that there was a foreign substance on the floor that contributed to Shoemaker's fall, nor is there any evidence that an employee of Kohl's knew of such a condition and took action to resolve it. Shoemaker stated in her deposition that the concrete floor in the customer service area was slick, but she also said it was “[v]ery shiny,” “[v]ery nice,” and was kept clean. Given the absence of evidence suggesting the presence of a foreign substance, this was insufficient to create a fact issue to defeat Kohl's no-evidence summary judgment motion. We reach the same conclusion regarding Shoemaker's speculation that there may have been something wrong with the chair. No evidence was presented that the chair was defective.

In sum, the evidence presented by Shoemaker does not amount to any more than a scintilla of evidence that there was an unreasonable risk of harm on the premises when the accident occurred. Because Shoemaker has failed to satisfy her burden to come forward with summary judgment evidence raising a genuine issue of material fact as to this element of her claim, Kohl's no-evidence summary judgment motion was properly granted. We overrule appellant's issue.

We affirm the trial court's judgment.

FOOTNOTES

1.   In a passage referred to by Shoemaker, the Pipkin court also noted that because the definition of what constitutes a dangerous condition precludes a definitive, objective test, “the extent to which a condition is unreasonably dangerous is ordinarily a fact question.” Id. at 671. In the next sentence, however, the court added that “whether a condition is unreasonably dangerous may be determined as a matter of law.” Id.

LANA MYERS JUSTICE