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Sanchez v. Krogers

Court of Appeals of Texas, Fourteenth District, Houston
May 13, 2004
No. 14-03-00053-CV (Tex. App. May. 13, 2004)

Opinion

No. 14-03-00053-CV.

Memorandum Opinion filed May 13, 2004.

On Appeal from the 268th District Court Fort Bend County, Texas, Trial Court Cause No. 100,170.

Affirmed.

Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.


MEMORANDUM OPINION


In this slip-and-fall case, Nelda Sanchez appeals a no-evidence summary judgment entered in favor of Krogers, Inc. ("Krogers") on the ground that she produced sufficient evidence to raise a fact issue whether Krogers had actual or constructive knowledge of the substance on the floor that caused her to fall. We affirm.

Sanchez filed a premises liability action against Krogers for injuries she allegedly suffered from falling in a Krogers supermarket. Krogers filed a no-evidence motion for summary judgment (the "motion"), contending that there was no evidence Krogers had actual or constructive knowledge of the allegedly dangerous condition that caused Sanchez to fall. The trial court granted the motion.

A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See TEX. R. CIV. P. 166a(i). In reviewing a no-evidence summary judgment, we review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences, to determine whether more than a scintilla of probative evidence was presented on the challenged elements of the nonmovant's claim. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (2003).

To prevail on a premise liability claim, a plaintiff must prove, among other things, actual or constructive knowledge by the owner or occupier of a condition on the premises that posed an unreasonable risk of harm. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). In a slip-and-fall case, this knowledge element can be established if the plaintiff shows either that: (1) the defendant put the foreign substance on the floor; (2) the defendant actually knew the substance was on the floor; or (3) it is more likely than not the condition existed long enough to give the defendant a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

To raise a fact issue on the knowledge element in this case, Sanchez's summary judgment response relied solely on her supplemental interrogatory answer, identifying witnesses allegedly having knowledge of the facts necessary to prove her case. However, a party may not rely on her own answer to an interrogatory as summary judgment evidence. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2002). In addition, Sanchez was not a competent witness to testify about the knowledge possessed by other witnesses. Therefore, Sanchez's summary judgment response failed to provide any evidence to raise a fact issue concerning Krogers's knowledge of the allegedly dangerous condition.

See TEX. R. EVID. 602 (A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that the witness has personal knowledge of the matter); Tex. Div.-Tranter, Inc. v. Carroza, 876 S.W.2d 312, 314 (Tex. 1994) (holding that terminated employee's affidavit, stating his belief that he and other employees had been terminated because they filed worker's compensation claims against the employer, was conclusory for failing to state a basis for this knowledge and thus not competent summary judgment evidence to raise a fact issue on retaliatory motive).

Sanchez also contends that the trial court erred in denying her post-judgment motion to reconsider because the affidavits attached to it contained sufficient evidence to raise a fact issue regarding Krogers's knowledge. However, fact issues that are not raised by summary judgment evidence set forth in a summary judgment motion or response filed before judgment is entered may not be considered as grounds for reversal on appeal. Therefore, evidence contained in the affidavits attached to Sanchez's motion for reconsideration are not a proper basis to reverse the summary judgment.

See TEX. R. CIV. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex. App.-Houston [1st Dist.] 1995, no writ); Leinen v. Buffington's Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.-Houston [14th Dist.] 1992, no writ).

Because Sanchez's issues thus fail to demonstrate that she provided timely and proper summary judgment evidence responsive to Krogers's no-evidence motion for summary judgment, they are overruled, and the judgment of the trial court is affirmed.


Summaries of

Sanchez v. Krogers

Court of Appeals of Texas, Fourteenth District, Houston
May 13, 2004
No. 14-03-00053-CV (Tex. App. May. 13, 2004)
Case details for

Sanchez v. Krogers

Case Details

Full title:NELDA SANCHEZ, Appellant v. KROGERS, INC., Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: May 13, 2004

Citations

No. 14-03-00053-CV (Tex. App. May. 13, 2004)