Summary
stating that restaurant owner discharged its duty to warn of wet floor by placing caution sign, which plaintiff walked around, near the slick area
Summary of this case from Robbins v. Wal-Mart Stores Texas, LLCOpinion
No. 11-07-00026-CV
Opinion filed March 27, 2008.
On Appeal from the 142nd District Court, Midland County, Texas Trial Court, Cause No. CV-45441.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Lori Tucker filed suit against Cajun Operating Company, individually and d/b/a Church's Fried Chicken alleging a premises liability claim for personal injuries she sustained when she slipped and fell. The trial court granted Church's motion for summary judgment and entered a take-nothing judgment against Tucker. We affirm.
I. Background Facts
Tucker alleged that she and her family were eating at Church's when she slipped and fell. Tucker alleged that her fall was caused by a wet and slippery floor and that this condition constituted a premises defect. Church's filed a combination traditional and no-evidence motion for summary judgment. Church's argued that it had no liability as a matter of law because Tucker was warned that the floor was wet and slippery. The trial court granted Church's motion without specifying whether it was granting the no-evidence or traditional motion.
II. Standard of Review
Tucker argues that a fact question exists on whether she was adequately warned. We will apply the well-recognized standards of review for summary judgments. No-evidence motions are reviewed under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we review the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id. A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element of the claim. TEX. R. CIV. P. 166a(i).
For traditional motions, questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep't of Transp., 999 S.W.2d 881 (Tex.App.-Austin 1999, pet. denied). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).
III. Analysis A. Evidence.
Tucker's brief refers to testimony from her affidavit. Church's objects to our consideration of that affidavit because it is not in the clerk's record, although it is in Tucker's appendix. Church's objection is well-taken. Our review is limited to those matters expressly presented to the trial court. Id. at 678. Tucker's affidavit is not in the clerk's record, and there is no reference to it in her response to Church's motion for summary judgment. Consequently, we cannot consider it.
B. Warning.
The parties agree that Tucker was an invitee. Businesses such as Church's have a duty of ordinary care to keep their premises in a reasonably safe condition for invitees. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). To prevail on a premises liability claim, Tucker must prove (1) that Church's had actual or constructive knowledge of some condition on the premises, (2) that the condition posed an unreasonable risk of harm, (3) that Church's did not exercise reasonable care to reduce or eliminate the risk, and (4) that Church's failure to use reasonable care proximately caused her injuries. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). The obligation to reduce or eliminate the risk can be achieved either by warning or by making the condition safe. State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996).
Tucker testified in her deposition that Church's had a yellow caution sign close to the trash and that she had to walk around the sign when she entered the restaurant. Tucker was given a picture of the restaurant and was asked to place an "S" in the spot where the sign had been. She marked a location that was approximately halfway between the front door and the counter. She also testified that she "saw that sign there and [she] knew they had just mopped and it was wet."
We appreciate that Tucker's knowledge bears on her own negligence and not Church's duty. See Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. 1978). For that reason we have disregarded Tucker's testimony that she saw her husband slip in the same area where she subsequently fell. But we have referenced this one statement because it confirms that she saw and understood Church's warning.
Tucker's testimony establishes as a matter of law that Church's warned her of the dangerous condition. By warning her, Church's discharged its duty as a matter of law. Bill's Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). The trial court, therefore, did not err by granting Church's motion for summary judgment. Tucker's sole issue on appeal is overruled.
IV. Holding
The judgment of the trial court is affirmed.