Opinion
No. 10-02-00053-CV
Opinion delivered and filed August 25, 2004.
Appeal from the 44th District Court, Dallas County, Texas, Trial Court No. DV00-02808-B.
Affirmed in part, reversed and remanded in part.
Keith R. Verges, Figari, Davenport Graves, L.L.P., Dallas, TX, for appellant/relator.
Lance C. Travis and Jeffrey W. Snell, Burford Ryburn, L.L.P., Dallas, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM Opinion
Alice and Lloyd Kofahl filed this slip-and-fall case against Randall's Food Drugs, formerly dba Tom Thumb Food Drugs, after Alice slipped in an unidentified liquid on the grocery's floor, fell, and broke her hip. Randall's filed a no-evidence summary judgment motion contending that the Kofahls can produce no evidence that it had actual or constructive knowledge of the spilled liquid. Randall's also filed a motion to quash a deposition notice and subpoena duces tecum the Kofahls had served on Randall's seeking to depose a representative of the company on the issues of premises maintenance and safety policies and procedures and to obtain discovery of documents related to these issues.
The trial court quashed the deposition notice and subpoena, granted the summary judgment motion, and rendered a take-nothing judgment. The Kofahls contend in five issues that the court erred by granting the summary judgment and motion to quash because: (1) Randall's can be held liable under "the Corbin rule" due to inadequate safety policies and procedures regardless of whether it had actual or constructive knowledge of the spill; (2) Randall's "created unreasonably dangerous premises" by failing to have adequate policies and procedures; (3) they presented more than a scintilla of evidence that the spill had been on the floor long enough to charge Randall's with constructive knowledge; (4) the court should have permitted further discovery regarding Randall's policies and procedures; and (5) they should not be required to prove actual or constructive knowledge under the facts of this case.
Because the Kofahls presented more than a scintilla of evidence that the liquid had been on the floor long enough to give Randall's constructive knowledge of its presence and because the court did not abuse its discretion by granting the motion to quash, we will affirm in part and reverse and remand in part.
CONSTRUCTIVE KNOWLEDGE
The Kofahls contend in their third issue that they presented more than a scintilla of evidence that the liquid had been on the floor long enough to charge Randall's with constructive knowledge of its presence. Under settled premises liability law, if the premises owner did not place the substance in question on the floor and did not have actual knowledge of its presence, the plaintiff must establish that "it is more likely than not that [the substance was on the floor] long enough to give the premises owner a reasonable opportunity to discover it." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
Alice provided deposition testimony that the edges of the "large" puddle of liquid she slipped in were "very tacky and gummy" as if the puddle was "starting to dry up." Although our research has not disclosed any recent cases addressing this type of evidence, it has been held that this type of testimony will support a finding that a liquid on the floor has been there for a sufficient length of time to charge the premises owner with constructive knowledge of its presence. See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex.Civ.App. — Dallas 1977, no writ); Furr's, Inc. v. McCaslin, 335 S.W.2d 284, 286-87 (Tex.Civ.App. — El Paso 1960, no writ); Furr's, Inc. v. Bolton, 333 S.W.2d 688, 689-90 (Tex.Civ.App. — El Paso 1960, no writ). Thus, we conclude that the Kofahls presented more than a scintilla of evidence to show constructive knowledge. See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (nonmovant must produce more than a scintilla of evidence to defeat no-evidence summary judgment motion).
Notably, our research has disclosed no cases (recent or otherwise) concluding that such evidence is inadequate to show constructive knowledge.
Accordingly, we sustain the Kofahls' third issue.
MOTION TO QUASH DEPOSITION
The Kofahls contends in their fourth issue that the court abused its discretion by sustaining Randall's motion to quash. We review such rulings under an abuse-of-discretion standard. See Salazar v. Coastal Corp., 928 S.W.2d 162, 171 (Tex. App.-Houston [14th Dist.] 1996, no writ); accord Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998) (courts review pretrial discovery rulings for abuse of discretion).
By a prior deposition notice served in July 2001, the Kofahls sought to depose a representative designated by Randall's on five of the six issues identified in their November 2001 deposition notice which the court quashed. As with the November deposition notice, Randall's had sought to quash the July deposition notice. The Kofahls responded with a motion to compel, and the trial court referred the dispute to a master.
Randall's informed the master that it had already provided the Kofahls with the only testimony and documents it had responsive to the discovery requests at issue. The master accepted this assertion and recited it in its findings. The Kofahls did not appeal the master's findings and recommendation.
The master required only that Randall's produce for in camera inspection certain documents from the personnel files of employees on duty when Alice fell who were directly responsible for the safety and maintenance of the premises.
The additional item of discovery in the November deposition notice not included in the prior July deposition notice was a request for testimony and documents pertinent to "policies and procedures for reviewing and monitoring accident reports, including without limitation accident reports that omit to identify the material spilled." Although the November notice did seek an additional category of evidence, the trial court may well have concluded that this "additional" category was subsumed by the Kofahls previous request for testimony and documents pertinent to "[a]uditing procedures in place at the premises in question on April 29, 1998, used to monitor compliance with safety procedures, employee performance, update training materials, policies and procedures regarding store premises and safety."
Because the Kofahls did not appeal the master's finding that Randall's had disclosed all relevant testimony and documents pertinent to five of the six categories of evidence identified in the November deposition notice and because the trial court may have concluded that the sixth category of evidence was subsumed by one of the five categories identified in the July deposition notice, we cannot say that the court abused its discretion by sustaining the motion to quash the November deposition notice. See Miller v. State County Mut. Fire Ins. Co., 1 S.W.3d 709, 716-17 (Tex. App.-Fort Worth 1999, pet. denied) (court did not abuse its discretion by prohibiting repetitive discovery). Accordingly, we overrule the Kofahls' fourth issue.
CONCLUSION
Because of our disposition of the Kofahls' third and fourth issues, we do not reach their remaining issues. We affirm the trial court's order sustaining Randall's motion to quash the November deposition notice. We reverse the "final judgment" granting Randall's no-evidence summary judgment motion and remand this cause to the trial court for further proceedings consistent with this opinion.
DISSENTING OPINION
This is a slip and fall case. It is unnecessary to the Court's disposition of this case to address the merits of the fourth issue. It is, therefore, dicta. I would not address it.
Based upon Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 937-938 (Tex. 1998) I would hold that the meager statements describing the liquid in which Alice Kofahl allegedly slipped are no evidence to support constructive notice of its presence on the floor.
The Court also fails to address the issue raised by Randall's regarding the failure of the appellants to challenge one of the grounds upon which summary judgment could have been independently granted against Lloyd Kofahl. The judgment was not challenged on all possible grounds on which it could have been granted, and it should, therefore, be affirmed.
For the foregoing reasons, the judgment of the trial court should be affirmed. Because the Court reverses the judgment in part, I respectfully dissent.