Opinion
No. 01-05-00833-CV
Opinion issued June 1, 2006.
On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 2004-21000.
Panel consists of Justices NUCHIA, KEYES, and HANKS.
OPINION
Appellant, Leonard Eubanks, slipped and fell on a substance in a parking lot of one of appellees', Pappas Restaurants, Inc. and Pappas Partners, L.P., restaurants and brought a premises — liability cause of action. The trial court granted appellees' first amended motion for summary judgment. On appeal, appellant contends that the trial court erred in rendering summary judgment because appellee failed to establish as a matter of law that the condition resulting in appellant's injury did not pose an unreasonable risk of harm. For the reasons that follow, we reverse.
BACKGROUND
This is a case about mud and slime — specifically, whether the puddle that appellant slipped in consisted of one substance or the other. On August 21, 2002, appellant arrived at a Pappas restaurant around 5:30 p.m. to attend a seminar. While appellant was inside, it rained for nearly thirty minutes. At around 8:00 p.m., as the sun was beginning its nightly descent, appellant left and walked to his car. He approached his truck, which was parked near a flower bed and other landscaped greenery, and stepped over a concrete tire stop, slipped on a substance, and fell. As appellant fell, he attempted to regain his balance by grasping for the hood of his truck and in the process badly injured his shoulder.tore his rotator cuff
Appellant went to the doctor the next morning and then returned to the restaurant and spoke with the manager on duty who, according to company policy, filled out a guest — incident report. The report stated that "[appellant] slipped on slime that had formed in the parking lot." Appellant, in deposition testimony, described the substance in various ways, testifying at turns that:
• "It was, like, just slimy mud, kind of — it looked like somebody had raked up a bunch of leaves and picked up the leaves, but kind of left the dirt, the topsoil or — you know, didn't pick it all up with a dustpan, didn't clean it up properly."
• "And I told [the restaurant manager] that when I went out to my vehicle [the night of the incident], that I had slipped and fallen in some mud that was left on the parking lot pavement."
• "Well, right there's where I got into that, the mud or dirt or clay or whatever it was. It looked like they had swept it up or cleaned it up and didn't pick it up and there had been a little bit of rain that day. I don't know if it was water from the water beds or if it had been from the rain or what but it turned into like mud or slime and that's when I slipped and fell and hurt my arm."
• "[The fall] happened so fast that there wasn't nothing I could do. It was real slimy."
• "And so the next morning, I went back and I showed the manager, you know, the slime and the mud that was on the ground and I said this, you know, this is the reason why I fell and hurt myself . . ."
• "It just looked like the water had made a slime there and you really couldn't see it until I stepped in and once I slid and fell down and then I got back up and looked at it, then I could see my footprints, you know, tracks in the mud."
The summary — judgment evidence further showed that appellees' procedure was to clean the parking lot every Thursday (appellant's fall occurred on Wednesday night), and appellee's landscape supervisor testified that he believed it would take at least a few weeks for slime to form.
STANDARD OF REVIEW
Summary judgment is proper only when the movant establishes thatthat there is no genuine issue of material fact and thatthe movant is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex.App.-Houston [1st] 1994, writ denied). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Lawson, 888 S.W.2d at 33. We will take all evidence favorable to the nonmovant as true. Id. As movant, the defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st] 1993, writ denied). Once the movant has established its right to summary judgment, the burden shifts to the non-movant to raise a fact issue or to defeat at least one element of the movant's affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
DISCUSSION
The central issue for us to resolve is whether a genuine issue of material fact exists as to whether the constitution of the substance upon which appellant slipped is slime or mud.
The reason the distinction between slime and mud is of importance is that the Texas Supreme Court, in a trilogy of cases, has ruled that, as a matter of law, dirt (or mud) in its ordinary state that has formed without the assistance of unnatural contact cannot be an unreasonably dangerous condition. See Brownsville Navigation Dist. v. Izaguirre. 829 S.W.2d 159, 160-61 (Tex. 1992) (holding that plain dirt that turns to mud when wet is not dangerous condition for which lessor could be liable); Johnson County Sheriff's Posse v. Endsley. 926 S.W.2d 284, 287 (Tex. 1996) (dirt containing small rocks kicked up by horse during rodeo event is not unreasonably dangerous condition); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (holding that ordinary mud that accumulates naturally on outdoor concrete slab without assistance or involvement of unnatural contact is not condition posing unreasonable risk of harm).
Here, the store manager — appellees' employee — classified the substance as "slime" on her guest — incident report. Appellant referred to the substance as "slime," or some variant thereof, numerous times. There was summary — judgment evidence that the substance was the result of decomposing leaves left by appellees' employees landscaping. Appellee's landscape supervisor testified that he believed it would take at least a few weeks for "slime" to form.
Nothing in the summary — judgment evidence establishes that the substance upon which appellant slipped was mud or dirt in its natural state. Therefore, that is a fact issue for a fact finder to decide. Appellees have failed to show, as a matter of law, that they are entitled to a summary — judgment because they did not disprove an elements of appellant's claim.
We also note that appellees contend that appellant failed to raise, in the trial court, certain of its arguments on appeal. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). Specifically, appellees argue that appellant's claims that (1) the substance he slipped on is not ordinary mud because it came from the landscaped flower bed and (2) appellee failed to properly clean up after landscaping the flower beds thereby causing the flower bed to overflow are waived because they were not before the trial court.
In McConnell v. Southside Independent School District, 858 S.W.2d 337 (Tex. 1993) the Texas Supreme Court held that a "non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant's entitlement." Id. at 343 (emphasis added).
We recognize that McConnell is a plurality opinion; however, this proposition has been adopted by the Texas Supreme Court in subsequent cases. See e.g., Kelley — Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998).
The only issue raised by appellant's arguments, in both his response to appellee's motion for summary judgment and the arguments made in his appellate brief, is what the substance on which he fell consisted of. That is to say, appellant claims it was slime or mud that was not in its natural state. Appellees argue the converse; that it was surely not slime, but mud found in its natural state. Therefore, appellees' waiver argument fails — in his response to appellees' motion for summary judgment appellant clearly stated that the constitution of the substance was "slime."
We hold that the trial court's granting of the motion for summary judgment was error, and, accordingly, we sustain appellant's sole issue.
CONCLUSION
We reverse the judgment of the trial court and remand the cause for further proceedings not inconsistent with this opinion.
Justice Keyes dissenting in the judgment.
DISSENTING OPINION
I dissent. In a slip-and-fall case, an owner/operator has a duty to exercise reasonable care to protect its invitees from conditions on its premises (1) that pose an "unreasonable risk of harm"; (2) of which the owner/operator had actual or constructive knowledge; (3) which he did not use reasonable care to reduce or eliminate; and (4) which proximately caused the plaintiff's injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
Appellant has produced no evidence upon which a jury could base a reasonable conclusion that "mud" or "slime" — words used interchangeably by appellant in the deposition testimony quoted by the majority — on the pavement in appellees' parking lot next to a flower bed after a rain constituted an unreasonably hazardous condition sufficient to subject appellees to premises liability. Nor could he, in light of the Texas Supreme Court's holding in M.O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex. 2004). In that case, the plaintiff, Rape, slipped and fell on the pavement outside the dental lab after a rain. Id. at 672-73. According to the supreme court, Rape alleged that she parked her car along the side of the business and, as she was walking from her car toward the entrance of the building, she slipped and fell on a "slippery mud substance." She claimed the substance had accumulated on the parking lot sidewalk. Id. at 672. The supreme court held:
Ordinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm.
Id. at 676. The court reasoned,
Holding a landowner accountable for naturally accumulating mud that remains in its natural state would be a heavy burden because rain is beyond the control of landowners. Most invitees in Texas will encounter natural conditions involving ordinary mud regularly, and accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners.
Id. The circumstances in this case are identical, and the same reasoning applies.
Appellant had the burden of expressly presenting to the trial court any fact issues that defeated summary judgment and presenting any summary judgment proof necessary to establish a fact issue. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Under Rape, appellant could carry this burden only by raising a fact issue, i.e., presenting evidence, that the "substance" he slipped on was not "naturally accumulating mud and dirt." See Rape, 139 S.W.3d at 676. This he utterly failed to do. As appellee points out in its brief, "No where in the record is there any testimony, any documentation, or any proof, nor in any case cited by EUBANKS, is there any authority, whatsoever, that dirt in a flower bed is not `the natural state of dirt.'"
Indeed, slime is defined as "thin, glutinous mud." Webster's Unabridged Dictionary (2d ed. 2001).
The majority cites the use of the word "slime" in appellee's employee's report as "evidence" that raises a fact issue for trial. And appellant likewise states in his brief, "[Y]es, it was an argument based on semantics." If so, it is an argument appellant loses on the law. Neither a semantic difference in the words appellant used to describe the substance on which he slipped nor a report of what appellant claimed to have slipped on is evidence of what the substance actually was. Appellant himself cites as evidence his own deposition testimony that he slipped on "slimy mud" that "looked like somebody had raked up a bunch of leaves and picked up all the leaves, but kind of left the dirt." I see no way to characterize this "substance" as anything more than "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact." Rape, 139 S.W.3d at 676. Thus, I conclude that appellant slipped on "nothing more than dirt in its natural state," which, as a matter of law, constitutes no evidence of a hazardous condition that poses an unreasonable risk of harm to an invitee. See id.; see also Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 441, 445 (Tex.App.-Eastland 2003, pet. denied) (holding that "a premises owner/operator does not have a duty to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot because such an accumulation does not constitute an unreasonably dangerous condition"). Accordingly, I would hold that appellees proved their entitlement to summary judgment.
I would affirm the judgment of the trial court.