                                         NO. 12-18-00220-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

 FLOR REYES,                                                 §       APPEAL FROM THE
 APPELLANT

 V.                                                          §       COUNTY COURT AT LAW

 BROOKSHIRE GROCERY COMPANY,
 APPELLEE                                                    §       SMITH COUNTY, TEXAS

                                         MEMORANDUM OPINION
         Flor Reyes appeals the trial court’s summary judgment rendered in favor of Appellee
Brookshire Grocery Company (BGC). In two issues, Reyes argues that the trial court erred in
granting BGC’s motion for summary judgment. We affirm.


                                                  BACKGROUND
         On June 20, 2015, between 4:15 p.m. and 4:30 p.m., Reyes entered a grocery store owned
by BGC to shop with her family. While in the store, she began searching for a bottle of vitamin
water to purchase. As she walked through the store between the checkout area and the store aisles,
Reyes passed in front of an aisle end cap refrigerated display case. In front of the display case
stood a three-and-one-half foot tall, four-sided, yellow sign, which read “CAUTION CUIDADO |
WET FLOOR PISO MOJADO.” 1 Almost immediately after she passed the sign, Reyes entered




         1
            Earlier that day, BGC employees discovered a puddle of water, which resulted from a customer spill, in the
entry to the aisle on the right side of the display case. They sought to dry the area with paper towels and placed the
yellow “Caution” sign. That afternoon, approximately thirty minutes before Reyes’s arrival, another patron slipped
and fell in the aisle to the left of the refrigerated display case where Reyes later fell. BGC employees sought to clean
up that area with paper towels and moved the yellow “Caution” sign to an area in front of the refrigerated display case,
where it remained.
the aisle adjacent to the left side of the display case, slipped, fell, and sustained an injury, which
required the attendance of emergency medical personnel.
        Thereafter, Reyes filed the instant suit, in which she alleged that BGC was liable to her
under theories including negligence and premises liability. BGC filed a traditional motion for
summary judgment, to which Reyes responded. Ultimately, the trial court granted BGC’s motion
for summary judgment, and this appeal followed.


                                            SUMMARY JUDGMENT
        In two issues, Reyes argues that the trial court erred in granting BGC’s motion for summary
judgment. 2
Standard of Review
        In reviewing a traditional motion for summary judgment, 3 we must apply the standards
established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985), which are
as follows:

        (1) The movant for summary judgment has the burden of showing that there is no genuine issue of
        material fact and that it is entitled to judgment as a matter of law.


        (2) In deciding whether there is a disputed material fact issue precluding summary judgment,
        evidence favorable to the [nonmovant] will be taken as true.


        (3) Every reasonable inference must be indulged in favor of the [nonmovant] and any doubts
        resolved in its favor.



Nixon, 690 S.W.2d at 548–49; Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex.
App.–Tyler 2008, pet. denied). A defendant moving for summary judgment must either negate at
least one essential element of the nonmovant’s cause of action or prove all essential elements of
an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995). We are not required to ascertain the credibility of affiants or to determine the weight of
evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Zimmer,

         2
           Reyes’s first issue pertains to the admissibility of an exhibit containing video evidence. Reyes initially
contended that this exhibit was not available to the trial court at the time BGC’s motion was submitted. In her reply
brief, Reyes informed this court that she was withdrawing this issue. As such, we do not address it.
        3
            See TEX. R. CIV. P. 166a(c).


                                                         2
267 S.W.3d at 508. The only question is whether an issue of material fact is presented. See id.;
see also TEX. R. CIV. P. 166a(c).
       Once the movant has established a right to summary judgment, the nonmovant has the
burden to respond to the motion for summary judgment and present to the trial court any issues
that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin
Authority, 589 S.W.2d 671, 678–79 (Tex. 1979). Summary judgment should be affirmed on
appeal if any of the grounds presented in the motion are meritorious. See Carr v. Brasher, 776
S.W.2d 567, 569 (Tex.1989).
Overview of the Law
       Depending on the circumstances, a person injured on another’s property may have either a
negligence claim or a premises liability claim against the property owner. Occidental Chem. Corp.
v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.
1992). When the injury is the result of a contemporaneous, negligent activity on the property,
ordinary negligence principles apply. Jenkins, 478 S.W.3d at 644. When the injury is the result
of the property’s condition rather than an activity, premises liability principles apply. H.E. Butt
Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992). Although premises liability is itself a
branch of negligence law, it is a “special form” with different elements that define a property owner
or occupant’s duty with respect to those who enter the property. W. Invs., Inc. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005). Under premises liability principles, a property owner generally
owes those invited onto the property a duty to make the premises safe or to warn of dangerous
conditions as reasonably prudent under the circumstances. Jenkins, 478 S.W.3d at 644; Corbin
v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Smith v. Henger, 226 S.W.2d 425, 431
(Tex. 1950).
Negligent Activity
       In part of her second issue, Reyes argues that the trial court erred in granting summary
judgment in favor of BGC on her negligent activity cause of action.
       A plaintiff cannot recover under a negligent activity theory unless the evidence
demonstrates that her injury was caused by or was a contemporaneous result of the negligent
activity itself, rather than a condition created by the negligent activity. See Keetch, 845 S.W.2d at
264; Brooks v. PRH Investments, Inc., 303 S.W.3d 920, 923–24 (Tex. App.–Texarkana 2010, no
pet.); Kroger v. Persley, 261 S.W.3d 316, 320 (Tex. App.–Houston [1st Dist.] 2008, no pet.);



                                                 3
Lucas v. Titus County Hosp. Dist./Titus County Mem’l Hosp., 964 S.W.2d 144, 153 (Tex. App.–
Texarkana 1998), pet. denied, 988 S.W.2d 740 (Tex.1998). The negligent activity theory of
liability is applicable only where the evidence shows that the injuries were directly related to the
activity itself. Keetch, 845 S.W.2d at 264. If the injury was caused by a condition created by the
activity rather than the activity itself, a plaintiff is limited to a premises defect theory of liability.
Lucas, 964 S.W.2d at 153.
        The Texas Supreme Court’s decision in Keetch guides us in determining what evidence is
needed to establish that an injury was the contemporaneous result of the negligent activity itself,
rather than a condition created by the negligent activity. Keetch, 845 S.W.2d at 264. In Keetch,
the plaintiff slipped and fell about thirty minutes after a Kroger employee sprayed a chemical
substance on plants in the floral section of the store. See id. The supreme court rejected the
plaintiff’s contention that Kroger’s employees were conducting a negligent activity because the
activity––spraying plants––was not “ongoing” at the time of the plaintiff’s injury. See id. Thus,
while the plaintiff “may have been injured by a condition created by the spraying, . . . she was not
injured by the activity of spraying.” Id. In holding that underlying facts amounted to a premises
liability case rather than a negligent activity case, the court noted that “[a]t some point, almost
every artificial condition can be said to have been created by an activity.” Id.
        Similarly, in Stanley Stores v. Veazey, the Beaumont Court of Appeals applied the Keetch
analysis to another slip and fall case where the plaintiff alleged a negligent activity. See Stanley
Stores, Inc. v. Veazey, 838 S.W.2d 884, 885–86 (Tex. App.–Beaumont 1992, writ denied). In that
case, while shopping, the plaintiff slipped on a clear liquid and fell to the floor. See id. at 885.
The store manager found “a small puddle of water and a paper cup” in the area where the plaintiff
slipped. See id. The cup was a small sample-type, similar to those being used at that time in
promotion of a Pepsi–Cola display. See id. at 886. The Pepsi–Cola display was located near the
front entrance of the store, away from the area where the plaintiff fell. See id. Applying the
holding in Keetch, the court held that the facts were insufficient to support a negligent activity
claim. See id. The court explained that even assuming the evidence supported that the liquid
which caused the fall originated from the Pepsi display, which was an ongoing activity, the slip
and fall, which occurred in another part of the store still amounted to a condition created by the
activity. Id.




                                                    4
        Likewise, in Persley, the court of appeals reversed the trial court and held that there was
no evidence of negligent activity when the plaintiff slipped and fell by stepping in water that was
allegedly dripped onto the floor when a store employee transported frozen food from pallets to the
frozen food cases. See Persley, 261 S.W.3d at 320–21. The court noted that there was no ongoing
activity in the area where the plaintiff fell at the time the fall occurred and that the plaintiff fell at
least fifteen minutes after the employee left the area; thus there was no connection between the
injury and the stocking of the frozen foods section that would lead to a conclusion that the
plaintiff’s injury occurred as a contemporaneous result of a negligent activity. Id. at 320–21.
        The facts of the instant case are similar to those in Keetch, Stanley Stores, and Persley in
that the alleged negligent activities—failed attempts to prevent a display case from leaking and
mopping up water puddles—were not ongoing at the time when and place where Reyes fell. BGC
Assistant Manager Chris Jolee stated that a BGC employee tightened the drain plug on the display
case and another employee used paper towels to mop up the spill. In the video, BGC employees
can be seen mopping up a spill with paper towels in the area where Reyes ultimately fell and
placing the warning sign approximately thirty minutes before the Reyes incident. No further BGC
employee activity occurred in that area within that thirty-minute time span. Thus, there is no
evidence that any alleged negligent activity itself caused Reyes’s injuries or that her fall was
contemporaneous with BGC employees’ attempted drain plug tightening or floor clean-up efforts.
Rather, the evidence indicates that Reyes slipped on a small puddle––a condition caused by some
noncontemporaneous activity. Therefore, we hold that the trial court did not err in granting
summary judgment on Reyes’s negligent activity cause of action.
Premises Liability
        As part of her second issue, Reyes further argues that the trial court erred in granting
summary judgment in favor of BGC on her premises liability cause of action.
        “Premises owners and occupiers owe a duty to keep their premises safe for invitees against
known conditions that pose unreasonable risks of harm.” TXI Operations, L.P. v. Perry, 278
S.W.3d 763, 764 (Tex. 2009); Golden Corral Corp. v. Trigg, 443 S.W.3d 515, 518 (Tex. App.—
Beaumont 2014, no pet.). “This duty is discharged by warning the invitee of unreasonable risks
of harm either known to the owner or which would be known to him by reasonable inspection or
by making the premises reasonably safe.” Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369




                                                    5
(Tex. App.–Houston [14th Dist.] 2002, pet. denied); see also State v. Williams, 940 S.W.2d 583,
584 (Tex. 1996).
          When considering whether a warning is adequate, it must be considered “in context of the
totality of the circumstances.” Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 2014); Sanchez v.
Stripes LLC, 523 S.W.3d 810, 813 (Tex. App.–San Antonio 2017, pet. denied); see Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). “[A] property owner’s warning to an
invitee of an unreasonably dangerous condition is adequate if, given the totality of the surrounding
circumstances, the warning identifies and communicates the existence of the condition in a manner
that a reasonable person would perceive and understand.” Henkel, 441 S.W.3d at 253; see Perry,
278 S.W.3d at 765. “If the evidence conclusively establishes that the property owner adequately
warned the injured party of the condition, then the property owner was not negligent as a matter
of law.” Henkel, 441 S.W.3d at 252; accord Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 204
(Tex. 2015) (“[A] landowner who provides an adequate warning acts reasonably as a matter of
law.”).
          In the instant case, it is undisputed that Reyes was BGC’s invitee. Thus, BGC owed her a
duty to keep its premises safe against known conditions that pose unreasonable risks of harm. See
Perry, 278 S.W.3d at 764. BGC could discharge its duty by warning Reyes of unreasonable risks
of harm known to it, or which would be known to it by reasonable inspection or by making the
premises reasonably safe. See Bean, 77 S.W.3d at 369.
          In Golden Corral, the plaintiff slipped on a tile floor near a tall, yellow sign that contained
language warning of a wet floor. See Golden Corral, 443 S.W.3d at 517. The court held that there
was no dispute that Golden Corral warned of the condition because surveillance video conclusively
established that the tall yellow sign was present in the area when the plaintiff fell. See id. at 518.
The court noted that the plaintiff testified that had she seen the sign, “[i]t would have warned [her]
that there was a problem in the area where the cone was located.” Id. Moreover, the court stated
that the evidence at trial did not show that the risk was extreme since it did not show that before
the plaintiff fell, other Golden Corral customers or employees had fallen in the same area, and
there was no evidence showing that the floor was more slippery than might be expected from a
wet floor. See id. Lastly, the court set forth that the surveillance videos admitted into evidence
show a significant number of the restaurant’s customers walking in the area near the sign without
incident during a twenty-minute period before the plaintiff fell. See id.



                                                    6
         Here, the evidence is undisputed that BGC undertook efforts to dry the area where Reyes
later fell with paper towels and placed a three-and-one-half foot tall, four-sided, yellow sign, which
warned of the wet floor in both English and Spanish. The evidence is undisputed that the sign was
placed within three to five feet of the area where Reyes fell and that Reyes walked immediately in
front of the sign before she fell after taking only a few steps more. Much like the evidence in
Golden Corral, the evidence here reflects that had Reyes seen the sign, she would have understood
the message it conveyed. And while the record demonstrates that another customer fell in the same
area as Reyes, the video evidence conclusively establishes that, almost immediately after that
incident, BGC employees cleaned the area with paper towels and placed the warning sign in the
location where it stood when Reyes walked past it. During the approximately thirty-minute
timeframe between BGC employees’ placing the warning sign and Reyes’s fall, the video evidence
shows approximately forty other instances in which BGC patrons walk through the same area
without incident.
         After carefully reviewing the record, we conclude that the evidence conclusively
establishes that BGC discharged its duty to Reyes because it adequately warned of the wet floor.
See id. at 520. Therefore, we hold that the trial court did not err in granting BGC’s motion for
summary judgment on Reyes’s premises liability claim. 4 Reyes’s second issue is overruled.


                                                  DISPOSITION
         Having overruled Reyes’s second issue, we affirm the trial court’s judgment.

                                                                      JAMES T. WORTHEN
                                                                         Chief Justice

Opinion delivered April 30, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)

         4
          Because we have determined that the evidence conclusively establishes that BGC adequately warned of the
danger, we need not consider Reyes’s arguments concerning whether BGC had actual or constructive knowledge of
the danger. See TEX. R. APP. P. 47.1(a).


                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2019


                                         NO. 12-18-00220-CV


                                    FLOR REYES,
                                       Appellant
                                          V.
                            BROOKSHIRE GROCERY COMPANY,
                                       Appellee


                                Appeal from the County Court at Law
                             of Smith County, Texas (Tr.Ct.No. 66,862)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, it is the opinion of this court that there was no
error in the judgment.
                         It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
