Opinion
No. 05-05-01490-CV
Opinion Filed July 26, 2006.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-05-1991-b.
Affirm.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
This is a summ ary judgment case. The trial court granted summary judgment for appellee Pace Realty Corporation against appellant Frances A. Dalton. We affirm the trial court's judgment.
BACKGROUND
This cause of action arises from a slip and fall suffered by Dalton at an apartment complex managed by Pace. In her original petition, Dalton claimed (1) that, as she was walking to her apartment, she slipped in a puddle of watery slime on the sidewalk and fell on her back and (2) that, as a result of the injuries sustained in the fall, she experienced pain and suffering. Dalton alleged that Pace was negligent in failing to detect and/or to warn of an inherently dangerous condition on the premises and, as a proximate result thereof, Dalton sustained injuries.
Pace filed a motion for traditional and no-evidence summary judgment. In the traditional portion of the motion, Pace alleged that it had conclusive summary judgment evidence that Pace did not have any actual or constructive knowledge of the alleged premises defect. In the no-evidence portion of the motion, Pace argued that Dalton could produce no evidence to support any of the elements of the premises liability claim.
Dalton contemporaneously filed her first amended petition and her response to Pace's motion for summary judgment. She amended her petition to include two additional claims of negligent behavior that she claimed proximately caused her injuries: (1) Pace's failure to keep its office open during normal working hours and (2) Pace's failure to have a system to process tenant complaints while the management team was off-site. In her response to Pace's motion for summary judgment, Dalton asserted that her summary judgment evidence set forth facts to preclude summary judgment for Pace. According to Dalton, she raised fact questions regarding the following: (1) whether there was a foreign substance on the sidewalk; (2) the length of time the substance remained on the sidewalk prior to Dalton's accident; (3) the reason Pace's office was not open during normal business hours; (4) the date of Pace's last inspection of the premises prior to Dalton's fall; and (5) the reason Pace did not warn its tenants and invitees either prior to or subsequent to the incident. Without specifying the grounds for its ruling, the trial court granted summary judgment in favor of Pace. This appeal ensued. In two issues, Dalton asserts: (1) the trial court erred in granting summary judgment because she brought forth sufficient summary judgment evidence establishing a fact question on the issue of Pace's actual or constructive knowledge of "the inherently dangerous condition;" and (2) the trial court erred in granting summary judgment because Pace did not address the two additional claims of negligence.
STANDARD OF REVIEW
The standards for reviewing a "traditional" summary judgment under rule 166a(c) are well-established. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant as movant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Centeq Realty, Inc. v. Seigler, 899 S.W.2d 195, 197 (Tex. 1995).
A no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); see also Espalin v. Children's Medical Center of Dallas, 27 S.W.3d 675, 682-83 (Tex.App.-Dallas 2000, no pet.). A no-evidence motion for summary judgment places the burden on the nonmovant to present enough summary judgment evidence to raise a genuine issue of material fact on each of the challenged elements. See Tex. R. Civ. P. 166a(i); see also Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.) A no-evidence summary judgment is properly granted if the nonmovant fails to present more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.). 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." Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted). In determining whether the nonmovant has met his burden, we consider the evidence in the light most favorable to the nonmovant. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.).
ISSUE ONE: KNOWLEDGE OF THE RISK OF HARM
The essential elements of a premises liability cause of action are:
1. Owner or occupier had actual or constructive knowledge of the condition on the premises;
2. The condition posed an unreasonable risk of harm;
3. The owner or occupier failed to exercise reasonable care to reduce or eliminate the risk; and
4. Such failure was the proximate cause of the plaintiff's injuries.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
The trial court did not specify the grounds upon which it based its decision to grant summary judgment. Therefore, it could have found that Pace disproved the knowledge element of premises liability as asserted in the traditional portion of the motion for summary judgment and that Dalton failed to show why summary judgment should not have been granted. See Clear Creek Basin Authority, 589 S.W.2d at 678; Centeq Realty, Inc., 899 S.W.2d at 197. Or the court could have found that Dalton failed to raise a genuine issue of material fact on each of the elements of premises liability that Pace challenged in the no-evidence portion of the motion. See Crocker, 95 S.W.3d at 419.
On appeal, Dalton claims only that she brought forth sufficient summary judgment evidence to establish a fact question on the issue of Pace's actual or constructive knowledge of an inherently dangerous condition. We will assume without deciding that Dalton did, in fact, offer sufficient evidence with respect to the element of knowledge. This would preclude summary judgment pursuant to the traditional portion of Pace's motion . This would likewise raise a genuine issue of material fact on the element of knowledge in response to the no-evidence portion of the motion. However, we must still resolve this issue against Dalton. Pace claimed that she could produce no evidence regarding any of the elements of her cause of action, and Dalton addressed only one element on appeal.
It is not our duty to make an independent search of the summary judgment record for evidence. See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e). However, in the interest of justice, we have done so in this case. After carefully reviewing the record, we have determined that Dalton did not even address the second element of premises liability-the unreasonable risk of harm posed by the puddle of slimy water. Therefore, the trial court could have granted summary judgment against Dalton because she failed to present evidence to raise a genuine issue of material fact on this challenged element. See Tex. R. Civ. P. 166a(i).
Therefore, we overrule Dalton's first issue. In light of our determination that the trial court could have properly granted summary judgment based on Dalton's failure to offer evidence regarding the second element of premises liability, we need not address her second issue. We affirm the judgment of the trial court.