
Opinion issued December 7, 2006








In The
Court of Appeals
For The
First District of Texas



NO. 01-05-00833-CV



LEONARD EUBANKS, Appellant

V.

PAPPAS RESTAURANTS, INC. AND PAPPAS PARTNERS, L.P., Appellees



On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2004-21000



OPINION ON REHEARING
	We grant appellant's motion for rehearing, vacate our June 1, 2006 judgment, 
withdraw our June 1, 2006 opinion, and issue this opinion in its place.  
	Appellant, Leonard Eubanks, filed a premises-liability suit against appellees, 
Pappas Restaurants, Inc. and Pappas Partners, L.P., after he slipped and fell in a
restaurant parking lot owned by them.  The trial court granted appellees' first
amended motion for summary judgment, (1) and appellant appeals, contending that
appellees failed to establish as a matter of law that the condition resulting in
appellant's injury did not pose an unreasonable risk of harm.  We affirm.
BACKGROUND

	On August 21, 2002, appellant arrived at a Pappas restaurant at about 5:30 p.m.
to attend a seminar.  While appellant was inside, it rained for nearly 30 minutes.  At
about 8:00 p.m., appellant left the restaurant and walked to his truck.  As he
approached his truck, which was parked near a flower bed and other landscaped areas,
and stepped over a concrete tire stop, he slipped and fell.  He grasped for the hood of
his truck in an attempt to regain his balance, and, in the process, badly injured his
shoulder.  
	The next morning, after going to a doctor, appellant returned to the restaurant
and spoke with the manager on duty who, according to company policy, filled out a
guest-incident report.  The report stated that "[appellant] slipped on slime that had
formed in the parking lot."  
	Appellant, in deposition testimony, described the substance in the following
ways:
	"It was, like, just slimy mud, kind of--it looked like somebody had
raked up a bunch of leaves and picked up the leaves, but kind of left the
dirt, the topsoil or--you know, didn't pick it all up with a dustpan,
didn't clean it up properly."

	"And I told [the restaurant manager] that when I went out to my vehicle
[the night of the incident], that I had slipped and fallen in some mud that
was left on the parking lot pavement."

	"Well, right there's where I got into that, the mud or dirt or clay or
whatever it was.  It looked like they had swept it up or cleaned it up and
didn't pick it up and there had been a little bit of rain that day.  I don't
know if it was water from the water beds or if it had been from the rain
or what but it turned into like mud or slime and that's when I slipped
and fell and hurt my arm."

	"[The fall] happened so fast that there wasn't nothing I could do.  It was
real slimy."

	"And so the next morning, I went back and I showed the manager, you
know, the slime and the mud that was on the ground and I said this, you
know, this is the reason why I fell and hurt myself . . . ."

	"It just looked like the water had made a slime there and you really
couldn't see it until I stepped in and once I slid and fell down and then
I got back up and looked at it, then I could see my footprints, you know,
tracks in the mud."

	The summary-judgment evidence further showed that appellees' procedure was
to clean the parking lot every Thursday (appellant's fall occurred on Wednesday
night), and appellees' landscape supervisor testified that he believed it would take at
least a few weeks for slime to form.  

STANDARD OF REVIEW

 Summary judgment under rule 166a(c) is proper only when the movant
establishes that there is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc.
v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d
31, 34 (Tex. App.--Houston [1st Dist.] 1994, writ denied).  In reviewing a summary
judgment, we must indulge every reasonable inference in favor of the nonmovant and
resolve any doubts in its favor.  Johnson, 891 S.W.2d at 644; Lawson, 888 S.W.2d
at 33.  We will take all evidence favorable to the nonmovant as true.  Id.  As movant,
the defendant is entitled to summary judgment if the evidence disproves as a matter
of law at least one element of each of the plaintiff's causes of action.  Lear Siegler,
Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Marchal v. Webb, 859 S.W.2d 408,
412 (Tex. App.--Houston [1st Dist.] 1993, writ denied).  Once the movant has
established its right to summary judgment, the burden shifts to the nonmovant to raise
a fact issue or to defeat at least one element of the movant's affirmative defense.  See
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  
	To prevail in a premises liability case, an invitee must plead and prove, among
other elements, that a condition on the premises posed an unreasonable risk of harm
to the invitee.  M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 675 (Tex. 2004).  In its
First Amended Motion for Summary Judgment, Pappas argued that summary
judgment was warranted because the summary judgment evidence establishes that the
"slime," "mud," or "slimy mud" that Eubanks allegedly slipped on did not pose an
unreasonable risk of harm to him. In support of this argument, Pappas cites the
Supreme Court's opinion in M.O. Dental v. Rape, holding that "[o]rdinary mud that
accumulates naturally on an outdoor concrete slab without the assistance or
involvement of unnatural contact is, in normal circumstances, nothing more than dirt
in its natural state and, therefore, not a condition posing an unreasonable risk of
harm."  Id. at 676.  
	 In its motion, Pappas presented summary judgment evidence in the form of the
recorded statement of Eubanks and his deposition testimony establishing that
Eubanks slipped in naturally occurring mud that developed without the assistance of
Pappas employees or anyone else.  The summary judgment evidence sets forth the
following relevant facts: 
	1.	Appellant parked his car without noticing any 3' by 4' area of mud that
he later slipped on. 

	2.	There was a flower bed next to the spot where Eubanks slipped. 

	3.	There were decorative flowers and bushes in the flower bed next to the
spot where he slipped. 

	4.	It rained for 30 minutes after Eubanks parked his car and entered the
restaurant. 

	5.	Upon exiting the restaurant, Eubanks slipped in "slime," "mud" or
"slimy mud" composed of a mixture of topsoil, leaves, and grass. 

Thus, appellees' summary judgment evidence established that the substance was a
naturally occurring accumulation that, although possibly posing a risk of harm, did
not pose an unreasonable risk.  See id. at 675-76.  The burden then shifted to Eubanks
to provide summary judgment evidence that the slime or mud did not accumulate
naturally.  However, in his summary judgment response, Eubanks offered no evidence
that anything other than nature was involved in the occurrence of the slime or slimy
mud.  Conclusory and speculative statements in an affidavit and deposition that the
"slime," "mud"  or "slimy mud" was the result of the landscaping crew's negligence
in cleaning up the area are not sufficient to meet this burden.  See Brownlee v.
Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).  
	Because appellant did not meet his burden to raise a fact issue regarding
whether the slime or mud was not a naturally occurring substance, the trial court did
not err in granting appellees' motion for summary judgment.  Accordingly, we
overrule appellant's sole issue and affirm the judgment.  

 						Sam Nuchia
						Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.	
1. 	Appellant's motion was filed in accordance with Tex. R. Civ. P. 166a(c). 

