Opinion
No. 10-05-00340-CV
Opinion delivered and filed May 9, 2007.
Appeal from the 170th District Court McLennan County, Texas Trial Court No. 2004-1924-4.
Reversed and remanded
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE concurring) (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Marjorie Messer appeals from a no-evidence summary judgment decreeing that she take nothing in her suit for damages sustained when she fell when stepping from an elevated booth on the premises of Texas Roadhouse Restaurant. Messer contends that she presented some evidence in her summary-judgment response to support each element of her claim. We will reverse and remand.
Background
Messer went to Texas Roadhouse for dinner with three companions. A waitress escorted them to an elevated booth, and Messer took an inside seat beside the wall and away from the drop-off. When they finished dinner, Messer forgot about the drop-off when she exited the booth and fell to the floor, suffering fractures of the wrist and pelvis and other injuries to the shoulder and back. Messer alleges that Texas Roadhouse is liable because: (1) it knew or should have known that the elevated booth posed an unreasonable risk of harm to invitees; (2) it failed to exercise ordinary care to reduce or eliminate this risk by: (a) warning Messer about the drop-off, (b) making distinguishing markings on the floor to indicate the existence of the drop-off, (c) attaching "a rail or some other feature" to remind patrons of the drop-off, (d) using adequate lighting, or (e) training employees to warn patrons of the drop-off; and (3) Texas Roadhouse's failure to exercise ordinary care was a proximate cause of Messer's injuries.
Texas Roadhouse generally denied these allegations and filed a no-evidence motion for summary judgment. Texas Roadhouse contends in this summary judgment motion that there is no evidence that: (1) it had actual or constructive knowledge of some condition on the premises, (2) the condition on the premises posed an unreasonable risk of harm, (3) Texas Roadhouse failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm, or (4) its alleged failure to use reasonable care proximately caused Messer's injuries.
Messer responded with photographic evidence of the premises, an incident report prepared by the manager on duty at the time of Messer's fall, and excerpts from Messer's deposition testimony.
After hearing argument of counsel and reviewing the pleadings, the court granted the summary judgment motion.
Applicable Law
We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 582. A no-evidence summary judgment will be defeated if the non-movant produces some evidence "raising an issue of material fact" on the elements challenged by the movant. Id.
To prevail on a premises liability claim, a plaintiff must prove that (1) the landowner had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the landowner failed to exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) the landowner's failure to use reasonable care proximately caused the plaintiff's injuries. LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
Unreasonable Risk of Harm
Messer must have produced some evidence raising an issue of material fact regarding the existence of a condition on Texas Roadhouse's premises which posed an unreasonable risk of harm. Id. Messer's summary-judgment response states, in part, "Exhibits A, B and C raise genuine issues of material fact that would support a jury's determination that . . . the booth elevation was a dangerous condition."
Such a condition is often referred to as an "unreasonably dangerous condition." See, e.g., LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688-89 (Tex. 2006); Gagne v. Sears, Roebuck Co., 201 S.W.3d 856, 858 (Tex.App.-Waco 2006, no pet.); Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex.App.-Houston [1st Dist.] 2005, pet. denied); Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex.App. — Dallas 2004, pet. denied).
Perhaps it could be argued that Messer's reference to a mere "dangerous condition" was not a sufficient response regarding the existence of an " unreasonably dangerous condition." Nevertheless, in viewing the totality of Messer's summary judgment response, it is evident that she is referring to the existence of "a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care," namely, an unreasonably dangerous condition. See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424 (Tex.App.-Dallas 2004, no pet.) ("Generally, we construe pleadings as favorably as possible to the pleader. The pleader's intention will be upheld even if some element of a cause of action has not been specifically alleged."); see also Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex.App. — Dallas 2004, pet. denied) ("Summary judgment is a harsh remedy. Reviewing courts will strictly construe summary judgment in procedural and substantive matters against the movant.").
Exhibit "A" consists of photographs, two of which depict elevated booths in Texas Roadhouse. Exhibit "B" is the incident report prepared by the manager on duty at the time of Messer's fall. It states that the lighting was "dim" on the occasion in question. Exhibit "C" is Messer's deposition testimony. Messer testified that the area was dimly lit and she was unaware that the booth area was elevated.
Viewed in the light most favorable to Messer, this constitutes some evidence that the elevated booth posed an unreasonable risk of harm. See Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex.App. — El Paso 2003, no pet.) (plaintiff/non-movant presented some evidence that curb in parking garage which was difficult to see because of poor lighting posed unreasonable risk of harm); Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793, 796-97 (Tex.App.-Waco 2002, no pet.) (plaintiff/non-movant raised fact issue regarding whether curb-stop in dark part of church parking lot posed unreasonable risk of harm), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 n. 11 (Tex. 2004).
Actual or Constructive Knowledge
Messer must also have produced some evidence raising an issue of material fact regarding whether Texas Roadhouse had actual or constructive knowledge of this condition. See LMB, 201 S.W.3d at 688. Messer argued in her summary-judgment response that "Exhibits A, B, and C" address Texas Roadhouse's actual or constructive knowledge.
From the photographic evidence, it can be seen that the elevated booth is a "permanent" condition of the premises and regularly used, not something temporary like liquid spilled on the floor. See Burns, 125 S.W.3d at 599-600 (plaintiff/non-movant presented some evidence regarding defendant's constructive knowledge because place of plaintiff/non-movant's fall was "a principle egress and ingress into the Baylor facility" and parking garage was regularly patrolled by Baylor security officers); cf. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (in slip-and-fall case involving spilled liquid, "there must be some proof of how long the hazard was there before liability can be imposed on the premises owner").
Therefore, viewing the evidence in the light most favorable to Messer, she presented some evidence that Texas Roadhouse had constructive knowledge that the elevated booth posed an unreasonable risk of harm.
Failure to Exercise Reasonable Care
We next consider whether Messer produced some evidence raising an issue of material fact regarding whether Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm. See LMB, 201 S.W.3d at 688. Her summary-judgment response again refers to her three exhibits with regard to this element of her claim.
The photographic evidence indicates that Texas Roadhouse marked other areas of differing elevations. Messer testified in her deposition that Texas Roadhouse should have marked the elevated booth, improved the lighting, or had its waitpersons warn customers. Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm. See Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 262 (Tex.App.-Dallas 2004, no pet.).
Proximate Cause
The final element of Messer's claim is proximate cause. See LMB, 201 S.W.3d at 688. As with the other elements of her claim, Messer's summary-judgment response identifies her three exhibits as responsive to the issue of proximate cause.
Messer testified that she fell because the elevated booth was not marked and no one warned her. Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse's failure to use reasonable care to reduce or eliminate the unreasonable risk of harm was a proximate cause of Messer's injuries. See Scroggs, 150 S.W.3d at 262; Harwood v. Hines Interests Ltd. P'ship., 73 S.W.3d 450, 453 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
Conclusion
Messer presented some evidence raising an issue of material fact on each of the elements of her claim challenged by Texas Roadhouse's summary judgment motion. See Mack Trucks, 206 S.W.3d at 582. Therefore, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
CONCURRING OPINION
I fully join Justice Reyna's opinion and concur in the judgment, but I write separately to emphasize two points.
Adequacy of Summary Judgment Response
Messer's summary judgment response addresses the evidence on the second element — the condition posed an unreasonable risk of harm — by repeatedly referring to evidence of the elevated booth's "dangerous condition." That element is often shorthandedly referred to as the "unreasonably dangerous condition" or the "dangerous condition." Messer's summary judgment response begins by noting that Texas Roadhouse asserts that "Plaintiff has no evidence that a condition which caused an unreasonable risk of harm to Plaintiff existed on the premises of Defendant, and (2) that, if such condition existed, Plaintiff hasno evidence that Defendant had actual or constructive knowledge of the alleged condition on its premises." Messer then states one of the several legal issues presented by the no-evidence summary judgment motion: "1. Has Non-movant produced any factual evidence which would support a jury's finding that the elevated flooring of the booth created a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care?" And Messer concludes her recitation of the legal issues by stating:
See, e.g., Brookshire Groc. Co. v. Taylor, ___ S.W.3d ___, ___, 2006 WL 3456559, at *1-2 (Tex. Dec. 1, 2006) ("Brookshire was obliged to use reasonable care to protect Taylor, its invitee, from any unreasonably dangerous condition in its store of which it had actual or constructive knowledge.") ("And in H.E. Butt Grocery Co. v. Resendez, we held that a grocery store's self-service display of loose grapes in a recessed bowl on a rimmed table standing on a non-skid floor and surrounded by mats and warning cones was not an unreasonably dangerous condition ; rather, the grape on which the plaintiff slipped was the dangerous condition .") (emphases added); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) ("affidavit does not set out specific facts from which a jury could reasonably infer that LMB knew or should have known of some unreasonably dangerous condition of the premises which was involved in the accident") (emphasis added); CMH Homes, Inc. v. Daenan, 15 S.W.3d 97, 101 (Tex. 2000) ("the core of the duty depends on actual or constructive knowledge of a dangerous condition that a reasonable inspection would reveal") (emphasis added); Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) ("An invitee must show that a land owner either knew, or after reasonable inspection should have known, of an unreasonably dangerous condition before arguing that the owner breached a duty by failing to take any one of several precautions.") (emphasis added); Rosas v. Buddie's Food Store, 518 S.W.2d 535, 538 (Tex. 1975) ("we hold that reasonable minds could differ as to the dangerous character of the wet floor") (emphasis added); Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 347 (Tex.App.-Waco 2005, pet. filed) (Gray, C.J., dissenting) ("Finding no evidence that Brinson Ford knew, or had any reason to know, of an unreasonably dangerous condition on the premises, I would affirm the judgment.") (emphasis added).
Whether the elevated flooring of the booth in which Plaintiff and her party were seated was a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care are fact issues for a jury. Whether Defendant knew or should have known of a dangerous condition is also a fact issue for a jury.
The dissent would affirm the trial court's no-evidence summary judgment based solely on semantics ( i.e., Messer's failure to use "magic words" on the second element), stating that Messer's response "does not contend that, that evidence raises a fact issue as to whether the condition of Texas Roadhouse's premises constituted an unreasonable risk of harm." Dissent, post at 3. The above quotations from Messer's response refute the dissent's assertion, and it is also telling that Texas Roadhouse does not assert this reason as a basis for affirming the trial court. Moreover, the gravamen of a response to a no-evidence motion for summary judgment is not the use of magic words in the response, but the production of "summary judgment evidence raising a genuine issue of material fact." TEX. R. CIV. P. 166a(i); see id. Comment — 1997 ("To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.").
Improper Conflation of Premises Liability Elements
The four elements of a premises liability cause of action are:
(1) the owner had actual or constructive knowledge of some condition on the premises;
(2) the condition posed an unreasonable risk of harm;
(3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm;
and
(4) the owner's failure to use such care proximately caused the plaintiff's injuries.
LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
Texas Roadhouse contends that Messer was required but failed to produce evidence that Texas Roadhouse "knew, or had constructive knowledge, that the raised booth posed an unreasonable risk of harm." I believe that this argument improperly conflates the first two elements of a premises liability cause of action: (1) the owner had actual or constructive knowledge of some condition on the premises; and (2) the condition posed an unreasonable risk of harm. Compare Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 344-45 (Tex.App.-Waco 2005, pet. filed) (separately addressing evidence on first two elements) with id. at 346-47 (Gray, C.J., dissenting) (conflating the two elements and arguing that owner must have actual or constructive knowledge of the unreasonably dangerous condition).
The dissent alludes to but avoids addressing this issue. Dissent, post at 2, n. 1.
The improper conflation of the first two elements appears to arise in part from the loose use of, or the misplaced focus on, the language in the third element, the breach-of-duty element — the owner did not exercise reasonable care to reduce or eliminate the risk of harm — and descriptions in case law of the duty. The first two elements are the factual predicate for the imposition of a duty of reasonable care on the owner, and the third element articulates the duty of reasonable care by incorporating the first two elements into the third and inquires whether the duty was breached.
See, e.g., Alger, 169 S.W.3d at 346 (Gray, C.J., dissenting) ("If you fast forward over to issue three, when discussing reasonable care, the cited cases are referencing whether or not the owner/occupier failed to take reasonable care to eliminate the unreasonably dangerous condition the owner/occupier knew existed or, by the exercise of reasonable care, would discover.").
"The duty owed is to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover." CMH Homes, 15 S.W.3d at 101.
Texas Roadhouse's and the Alger dissent's improper conflation of the first two elements is wrong because it removes the objective standard that exists in the second element — the condition posed an unreasonable risk of harm — and replaces it with a subjective standard on the owner's part. The first element — the owner had actual or constructive knowledge of some condition — has a subjective (actual knowledge) and an objective (constructive knowledge) component. The second element — the condition posed an unreasonable risk of harm — is purely objective: whether a condition is a danger is a function of reasonableness, i.e., whether a reasonably prudent person would foresee that harm was a likely result of the condition. See Rosas v. Buddie's Food Store, 518 S.W.2d 534, 537 (Tex. 1975); see also County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) ("A condition poses an unreasonable risk of harm for premises-defect purposes 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.").
When a defendant or its employee learns of a dangerous condition, the defendant has actual knowledge or notice of the dangerous condition. E.g., Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex.App.-Austin 2000, pet. denied) (employee saw customers stumbling over step). "Actual knowledge is what a person directly and clearly knows." O'CONNOR'S TEXAS CAUSES OF ACTION 715 (2007) (citing BLACK'S LAW DICTIONARY 888 (8th ed. 2004)).
"Constructive knowledge is what a person does not actually know but objectively should know or has reason to know." O'CONNOR'S TEXAS CAUSES OF ACTION 716 (2007) (citing BLACK'S LAW DICTIONARY 888 (8th ed. 2004)).
Of course, courts can determine that a particular condition does not pose an unreasonable risk of harm as a matter of law. But whether a condition poses an unreasonable risk of harm usually is an inherent fact question determined objectively from the reasonably prudent person standpoint.
E.g., M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004) (mud and dirt that accumulated naturally on concrete slab outside business did not pose unreasonable risk); Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex. 1996) (small rock in dirt clod at rodeo arena not unreasonable risk)
See, e.g., Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) ("The determination of whether a particular condition poses an unreasonable risk of harm is generally fact specific."); Alger, 169 S.W.3d at 345 ("We conclude that reasonable minds could differ as to whether this ramp posed an unreasonable risk of harm; thus, whether this ramp is unreasonably dangerous is a fact question for a jury."); Brooks v. First Assembly of God Church, 86 S.W.3d 793, 797 (Tex.App.-Waco 2002, no pet.) ("Whether a particular risk is unreasonable or not is a fact question for the jury."), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 n. 11 (Tex. 2004); Reliable Consultants, 25 S.W.3d at 342 ("It is important to note that reasonableness determinations such as the one here are fact-intensive inquiries and, as such, are issues well-suited for a jury's determination.")
I believe that the error of those who would improperly conflate the first two elements also arises from equating temporary-dangerous-condition cases ( e.g., spills) with permanent-dangerous-condition cases such as this case and Alger. In a temporary-dangerous-condition case involving, for example, spilled liquid on a store floor, that condition almost always poses an unreasonable risk of harm, and the crux is usually whether the owner had actual or constructive knowledge of the temporary dangerous condition — the spilled liquid. Thus, the key issue is usually framed as whether the owner had actual or constructive knowledge of the unreasonably dangerous condition, i.e., the spilled liquid on the store floor. But a permanent-dangerous-condition case presents a converse situation; the owner is usually going to have knowledge of the allegedly dangerous condition. Equating typical temporary and permanent condition cases can thus lead to the improper conflation of the first two elements posited by Texas Roadhouse and the Alger dissent: the plaintiff is required to produce evidence that the defendant actually knew or had constructive knowledge that the condition posed an unreasonable risk of harm.
A slip-and-fall plaintiff satisfies the actual or constructive knowledge element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed 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).
"The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. Creating the condition does not establish knowledge as a matter of law for purposes of premises liability, however, creation of the condition is circumstantial evidence of knowledge." Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex.App.-El Paso 2003, no pet.) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265-66 (Tex. 1992)).
Moreover, an important distinction exists between knowing that a condition exists and knowing that the condition is unreasonably dangerous; that distinction makes a world of difference on the plaintiff's evidentiary burden. Conflating the first two elements results in a plaintiff having to prove that the owner had actual or constructive knowledge that the condition was unreasonably dangerous. A plaintiff would have to prove that the owner subjectively knew that the condition was unreasonably dangerous yet consciously disregarded it or failed to warn of it; a plaintiff would be required to produce evidence of the owner's subjective state of mind — that the owner knew of and considered the condition to be unreasonably dangerous — an almost impossible burden to meet absent an admission by the owner.
Texas Roadhouse knew that it had elevated booths in its restaurant; its dispute is whether the elevated booths pose an unreasonable risk of harm. The crux of this case, therefore, is whether the elevated booths pose an unreasonable risk of harm. To require Messer to produce evidence that Texas Roadhouse knew that its elevated booths posed an unreasonable risk of harm would impose an almost impossible burden on her. Because Messer presented some evidence that the elevated booths pose an unreasonable risk of harm, and because we cannot say as a matter of law that the elevated booths do not pose an unreasonable risk, a genuine issue of material fact exists on that element, to be determined by a jury.
DISSENTING OPINION
Messer appeals the trial court's summary judgment in favor of Texas Roadhouse on Messer's claim for premises liability. This Court reverses and remands. We should affirm.
In Messer's one issue, she contends that the trial court erred in granting Texas Roadhouse's no-evidence motion for summary judgment. The sub-issue on which we should focus is whether Messer responded to the motion with any probative evidence that an elevated booth, that is, a booth in which a dining table is located such that the floor of the booth is higher than the primary floor, constituted a condition that posed an unreasonable risk of harm.
There has been some disagreement on this Court as to whether the owner/occupier must have actual or constructive knowledge that the condition posed an unreasonable risk of harm. Compare Alger v. Brinson Ford, Inc., 169 S.W.3d 340 (Tex.App.-Waco 2005, pet. filed) with id. at 346 (Gray, C.J., dissenting). The resolution of that disagreement is not necessary for the disposition of this appeal.
"After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." TEX. R. CIV. P. 166a(i). "The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Id.; see W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). "In reviewing a no-evidence summary judgment motion, we examine the record in the light most favorable to the nonmovant. . . ." Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam). "A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element." Fort Worth Osteopathic Hosp. at 99 (citing Morgan at 929). "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.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); accord Forbes at 172; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (op. on orig. submission). Where "the trial court's order granting summary judgment does not specify the basis for the ruling, we must affirm the trial court's judgment if any of the theories advanced are meritorious." W. Invs. at 550 (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989)).
The elements of a claim for premises liability to a business invitee are:
(1) Actual or constructive knowledge of a condition on the premises by the owner or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner or occupier's failure to use such care proximately caused the plaintiff's injury.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); accord Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). "A condition presenting an unreasonable risk of harm is defined as one in which 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." Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970); see Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975); Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 345 (Tex.App.-Waco 2005, pet. filed).
Texas Roadhouse's motion challenged the evidence of all four elements. In Messer's response, she pointed to the evidence of photographs of the interior and exterior of Texas Roadhouse's premises, a report completed by an employee of Texas Roadhouse, and extracts from Messer's deposition testimony. In Messer's response, she does not contend that, that evidence raises a fact issue as to whether the condition of Texas Roadhouse's premises constituted an unreasonable risk of harm.
On appeal, Messer also points to the photograph of the exterior, which, she says, "tend[s] to show that [Texas Roadhouse] knew that a raised curb and stair steps outdoors in broad daylight could constitute an unreasonable risk to invitees, and had ramps, marked curbs and handrails as a precaution." (Br. at 7.) Messer argues that the exterior photograph, by comparison with the interior photographs, "strongly suggest[s] to a jury that [Texas Roadhouse] knew or should have known that any elevation in floor surface, inside or outside its facilities, could be a dangerous condition that produced an unreasonable risk of harm to customers from tripping or falling." ( Id.; see id. at 7-8 (citing Harwood v. Hines Interests Ltd. P'ship, 73 S.W.3d 450, 452 (Tex.App.-Houston [1st Dist.] 2002, no pet.))); cf. Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 262 (Tex.App.-Dallas 2004, no pet.) ("another similar place"). Messer also points to her deposition testimony to the effect "that the booth contained no warning signs, no markers, was poorly lit when [Messer] was seated, and that no oral warnings about the steps were given to [Messer] by [Texas Roadhouse]'s employees," and argues that that testimony constitutes evidence of an unreasonable risk of harm. (Br. at 10.) Since Messer did not make those arguments in its written response to Texas Roadhouse's motion, we should not consider them. See TEX. R. APP. P. 33.1(a); TEX. R. CIV. P. 166a(c); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-77 (Tex. 1979); Torres v. City of Waco, 51 S.W.3d 814, 824 (Tex.App.-Waco 2001), overruled on other grounds, Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Madeksho v. Abraham, Watkins, Nichols Friend, 57 S.W.3d 448, 453 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Even if we did consider those arguments, they would not establish that the summary-judgment evidence, viewed in the light most favorable to Messer, raised a fact issue on whether a condition of Texas Roadhouse's premises posed an unreasonable risk of harm.
The trial court would not have erred in granting Texas Roadhouse's motion for summary judgment on the ground of no evidence of an unreasonable risk of harm. We need not consider Messer's arguments concerning Texas Roadhouse's other no-evidence grounds. We should overrule Messer's issue.
We should, after overruling Messer's sole issue, affirm. Because the Court does otherwise, I dissent.
TOM GRAY Chief Justice