      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00679-CV



                                      Lisa Sova, Appellant

                                                 v.

                        Bill Miller Bar-B-Q Enterprises, Ltd., Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
           NO. GN301623, HONORABLE PAUL DAVIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Lisa Sova appeals the summary judgment entered in favor of appellee Bill

Miller Bar-B-Q on the slip-and-fall claim that she brought against the restaurant. The sole issue on

appeal asks whether a genuine issue of material fact remains about whether Bill Miller had actual

or constructive knowledge of an unreasonably dangerous condition on its premises. Because the

record demonstrates no genuine issue of material fact, we will affirm.


                                        BACKGROUND

               On November 1, 2001, Lisa Sova went to lunch with a co-worker at an Austin

location of Bill Miller Bar-B-Q. According to the accident report filled out by Sova later that day,

and as confirmed in Sova’s subsequent deposition, Sova “put down [her] food tray and purse at the

table with [her] friend” and “went to the condiment bar to get a small container of pico de gallo.
When leaving the condiment bar [she] slipped on the water, pico de gallo flew everywhere, and [she]

hit the floor!”

                  In the accident report, Sova described the cause of her accident as “[a] small puddle

of water [that] was on the tile floor next to the condiment bar.” Sova testified that, when she

approached the condiment bar, she did not see anything on the floor, but she saw the puddle after she

fell. Although Sova testified that she did not know how long the puddle had been on the floor nor

how it had gotten there, she was confident that the puddle was water because “[i]t was clear.” Also,

Sova believed the puddle was created by a piece of ice that had fallen from the condiment bar and

melted, given the size of the puddle (about the same diameter as “the top of [a] cup”), its proximity

to the condiment bar, its clear appearance, and the fact that the spot on her jeans that got wet in the

fall felt cool to the touch. Based on these observations about the puddle, Sova alleged in her live

pleading that “[t]he foreign substance on the floor next to the condiment bar created an unreasonable

risk of harm . . . [of] which Defendant knew or should have known.”

                  As an alternative theory for her premises liability claim, Sova also pled that the

“condiment bar and surrounding floor . . . was a condition on the premises that posed an

unreasonable risk of harm . . . [of] which Defendant knew or should have known.” This argument

was based on the condiment bar being a “high traffic area . . . where condiment items, water, ice, and

soft drinks often fell to the floor creating an unreasonably dangerous slippery condition on the . . .

cory [sic] stone tile floor surrounding the condiment bar.” Sova alleged that Bill Miller was aware

of this danger, yet “failed to make the condition reasonably safe by utilizing floor mats or other

viable means to reduce the risk.”



                                                    2
               Sova claimed that, as a result of the fall, she bruised her left hip, suffered a contusion

to her left elbow, and dislocated her left shoulder, for which she underwent arthroscopic surgery.

Sova sought approximately $20,000 in medical expenses and lost wages, plus damages for past and

future pain, mental anguish, disfigurement, and physical impairment.

               Bill Miller filed a no evidence motion for summary judgment1 asserting that Sova

could not establish that Bill Miller had actual or constructive knowledge of the dangerous condition.

On September 27, 2004, the trial court granted Bill Miller’s summary judgment, ordering that Sova

take nothing on her claims and that she reimburse Bill Miller for its incurred costs pursuant to Texas

Rule of Civil Procedure 131. No grounds were provided for the judgment. Sova now appeals the

trial court’s granting of summary judgment.


                                            ANALYSIS

Standard of review

               A no evidence motion for summary judgment must be granted if, after an adequate

time for discovery, (1) the moving party asserts 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;

and (2) the nonmovant fails to produce more than a scintilla of summary judgment evidence raising

a genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). In a case where the trial




       1
          Although Sova does not contest Bill Miller’s statement that its motion presented both
traditional and no evidence grounds, a thorough review of its motion shows that Bill Miller sought
summary judgment pursuant only to rule 166a(i) for no evidence. See Tex. R. Civ. P. 166a(i). Thus,
our analysis of whether a genuine issue of material fact remains will be limited to the standard of
review applicable to no evidence motions.

                                                   3
court’s judgment does not specify the grounds relied upon for its ruling, the summary judgment must

be affirmed if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569

(Tex. 1989); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex. App.—Austin 2005, pet. denied).

               In reviewing a no evidence summary judgment, we “must examine the entire record

in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts against the motion” to determine whether more than a scintilla of evidence was presented on

the challenged elements of the nonmovant’s claim. City of Keller v. Wilson, 168 S.W.3d 802, 825

(Tex. 2005); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Perdue v. Patten

Corp., 142 S.W.3d 596, 604 (Tex. App.—Austin 2004, no pet.). More than a scintilla of supporting

evidence exists if the evidence would allow reasonable and fair-minded people to differ in their

conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Less than a scintilla

of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or

suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

Because the propriety of granting a summary judgment is a question of law, we review the trial

court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).


Premises liability

               Bill Miller owed Sova, its invitee, a duty to exercise reasonable care to protect her

from unreasonably dangerous conditions on the restaurant premises that were known or reasonably

discoverable to Bill Miller. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002);

Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, neither

obligated Bill Miller to ensure Sova’s safety nor made Bill Miller strictly liable for her injuries.

                                                 4
Reece, 81 S.W.3d at 814-15. To prevail on a premises liability claim, a plaintiff must establish that

the premises owner/operator had actual or constructive knowledge of some condition on the premises

that posed an unreasonable risk of harm, yet failed to exercise reasonable care to reduce or eliminate

the risk, which proximately caused the plaintiff’s injuries. See Keetch v. Kroger Co., 845 S.W.2d

262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

               In a slip-and-fall case, the knowledge element may be satisfied with proof that the

defendant (1) created the condition, (2) actually knew of the condition, or (3) should have known of

the condition because it existed for long enough to provide the defendant a reasonable opportunity

to discover it. Reece, 81 S.W.3d at 814, 816. In determining whether the premises owner/operator

had constructive knowledge under the third method of proof, known as the “time-notice rule,”

relevant factors to consider include the proximity of employees to the condition, the conspicuousness

of the condition, and the length of time that the condition existed. Wal-Mart Stores, Inc. v. Spates,

186 S.W.3d 566, 567-68 (Tex. 2006); Reece, 81 S.W.3d at 816. “When circumstantial evidence is

relied upon to prove constructive notice, the evidence must establish that it is more likely than not

that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to

discover the condition.” Gonzales, 968 S.W.2d at 935 (emphasis added) (evidence showing only

“possibility” that condition existed long enough to put store on notice was insufficient).

               The only issue here is whether Sova put forth more than a scintilla of evidence to

create a genuine issue of material fact about whether Bill Miller had actual or constructive

knowledge of an unreasonably dangerous condition on its premises. Sova and Bill Miller, however,

present different interpretations about what constituted the dangerous condition in this case: Sova



                                                  5
argues that the condiment bar and surrounding floor generally posed an unreasonable risk about

which Bill Miller had actual or constructive knowledge, yet failed to alleviate. Bill Miller narrows

the issue to whether it knew or should have known about the particular puddle on the floor. We

consider both theories to determine whether Sova demonstrated that a genuine issue of material fact

remained.2


Puddle on floor as unreasonably dangerous condition

               Although Sova believed that the puddle was created by a piece of ice that had fallen

and melted, she admitted that she did not know where the puddle came from. The only credible

evidence about the puddle is that, after Sova fell, she saw a small puddle of clear liquid on the floor

near the condiment bar, and the wet spot on her jeans felt cool to the touch. This evidence no more

demonstrates that the puddle resulted from fallen, melted ice than from a spilled drink of lemon-lime

soda or water. Even if it were ice, it could have fallen from a customer’s drink just as easily as from

the condiment bar. Furthermore, Sova also admitted that she did not know how long the condition

had existed. She testified that she did not see the puddle as she approached. Thus, it is just as likely

that the puddle was created while Sova was standing at the condiment bar (leaving Bill Miller


       2
           Although Bill Miller’s summary judgment motion focused on whether there was evidence
that it had knowledge of the puddle on the floor, the essence of its motion challenged whether Sova
had any evidence of the first element of her premises liability claim—that Bill Miller had actual or
constructive knowledge of a dangerous condition on its premises. See Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992) (setting forth required elements). Considering this, along with the
facts that the trial court did not articulate a ground for its judgment and Sova specifically asks this
Court to determine whether a genuine issue of material fact remains about Bill Miller’s awareness
of the danger posed by the condiment bar area, our review of whether Bill Miller had actual or
constructive knowledge of a dangerous condition encompasses both theories of what constituted the
condition—the specific puddle and the general condiment bar area.

                                                   6
virtually no time to discover and remedy the condition) as it was that the substance had been on the

floor for some time.

               Where testimony “could give rise to any number of inferences, none more probable

than another,” as here, then the evidence does not rise to “more than a scintilla to withstand a

no-evidence challenge.” Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995). Sova’s

subjective beliefs about the puddle’s origin and its temporal longevity were not supported by any

other evidence and, thus, amount to nothing more than conjecture and speculation insufficient to

negate a no evidence summary judgment motion. See Gonzales, 968 S.W.2d at 937-38; see also

Tex. R. Evid. 602 (personal knowledge required for witness testimony). Although Sova’s testimony

may raise a genuine issue about whether she slipped on a puddle of water, it does nothing to prove

how the puddle got there, how long it had been there, or whether Bill Miller knew or should have

known about its existence at the time of Sova’s fall. Just as in Reece, the record in this case

demonstrates


       no evidence to indicate how long the spill existed before she fell. There was no
       evidence that the spill was conspicuous—it was not large and consisted of a clear
       liquid on a light tile floor. There was no evidence that [a store employee] saw the
       spill before [appellant] fell. . . . There was no evidence indicating when or how the
       spill came to be on the floor. Nor was there evidence concerning the condition of the
       spilled liquid that might indicate how long it had been there.


81 S.W.3d at 816-17; see also Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 556 (Tex.

App.—Houston [1st Dist.] 2002, no pet.). Therefore, considering the evidence in the light most

favorable to Sova, we hold that there is no evidence to support the conclusion that Bill Miller had

actual or constructive knowledge of the puddle on the floor as a dangerous condition. See id.

                                                 7
Condiment bar area as unreasonably dangerous condition

                In Corbin v. Safeway Stores, the supreme court recognized that, although “in the

typical case, the only dangerous condition that is alleged is the specific [] item on the floor,” in some

cases the dangerous condition may be based on an allegation “that the store owner maintained an

unreasonably dangerous method of display that frequently caused such [] items to become floor

hazards.” 648 S.W.2d at 297. Noting that “a storekeeper may be held liable for any dangerous

premises condition about which he should be aware, not just for specific objects left on the floor,”

the Corbin court reversed the directed verdict3 because there was more than a scintilla of evidence

demonstrating Safeway’s actual or constructive knowledge that the way it maintained its self-service

grape display was unreasonably dangerous, “even in the absence of evidence showing the store

owner’s actual or constructive knowledge of the presence on the floor of the specific object causing

the fall.” Id. at 295, 298. The probative evidence in Corbin was that Safeway employees

acknowledged the store’s awareness of the risks posed by the grape display bin: “[Safeway] knew

from its experience that the grape bin was an unusually hazardous and continual source of slippery

material on which customers may fall.” Id. at 295; see also H. E. Butt Grocery Co. v. Resendez, 988

S.W.2d 218, 219 (Tex. 1999) (discussing Corbin).

                Since Corbin, the Dallas, Texarkana, and Houston courts of appeals have issued

opinions with similar analyses. In Crosby v. Minyard Food Stores, Inc., the plaintiff tripped and fell




        3
         The analysis in Corbin, albeit a directed verdict, is fully applicable to this case because “[a]
no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal
sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a
directed verdict.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

                                                   8
on a buckled floor mat at the entrance of the store. 122 S.W.3d 899, 900 (Tex. App.—Dallas 2003,

no pet.). The court affirmed the trial court’s denial of a directed verdict because “Crosby presented

evidence that Minyard was aware of the fact that the mat . . . was often buckled and caused

customers to fall,” including an employee’s testimony that “he had to straighten the mat between 48

and 86 times during an eight hour shift” and accident reports “showing that several people had

tripped and fallen on the mat within a few weeks before Crosby’s accident.” Id. at 901.

               In Brookshire Grocery Co. v. Taylor, the plaintiff slipped and fell on a wet substance

in the deli, which she alleged was a piece of ice that had fallen from a Coke dispenser. 102 S.W.3d

816, 819-20 (Tex. App.—Texarkana 2003, pet. filed). Taylor claimed that the manner in which

Brookshire maintained its drink-fountain area constituted a dangerous condition, whereas “from

Brookshire’s point of view, the puddle was the dangerous condition.” Id. at 820. The court affirmed

the summary judgment, holding that Taylor established that Brookshire was aware that its Coke

dispenser constituted a dangerous condition based on an employee’s testimony that ice frequently

fell from the dispenser onto the floor and the store’s admission that such previously fallen ice had

landed on the hard floor, beyond the mats it had in place. Id. at 822, 824-25.

               In National Convenience Stores, Inc. v. Erevia, the plaintiff slipped and fell on a

puddle of ice and/or water. 73 S.W.3d 518, 521 & n.1 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied). The court upheld the jury’s verdict on the premises liability claim because, based on “the

manager’s testimony that ice falling from iced barrels was a common problem associated with the

nature of the display” and “the company policy requiring [absorbent] mats under such displays,”

which the company had failed to use, there was sufficient evidence that the premises owner had




                                                 9
actual or constructive knowledge that its use of self-serve iced-drink barrels constituted a dangerous

condition. Id. at 523 & n.2.

               Thus, while courts following Corbin have recognized that a general area or method

of display may constitute an unreasonably dangerous condition, in each of these cases the defendants

or one of their employees admitted to knowing about the hazards associated with the manner in

which an area was maintained or goods were displayed. See Corbin, 648 S.W.2d at 295; Crosby,

122 S.W.3d at 901; Taylor, 102 S.W.3d at 822, 824-25; Erevia, 73 S.W.3d at 523.4 Additionally,

in Crosby there were accident reports showing that similar incidents had recently occurred, and in

Erevia the company’s policy manual demonstrated the known risk associated with the display and

the need for floor mats to remedy it. Crosby, 122 S.W.3d at 901; Erevia, 73 S.W.3d at 523. Unlike

the affirmative testimony or documentary evidence produced by the plaintiffs in these cases, Sova

failed to put forth a scintilla of evidence to demonstrate that Bill Miller knew or should have known

that the condiment bar area generally posed an unreasonably dangerous condition.

               The record reflects that the basic arrangement of the condiment bar is undisputed:

pickles, onions, pico de gallo, butter, lemons or limes, sour cream, bacon, and cheese are all

displayed in the condiment bar, housed in an “ice bath.” During the lunch hour, which is when Sova

fell, the condiment bar’s location is a “high traffic area.” The floor surrounding the condiment bar

is made of hard, relatively smooth, quarry tile. Bill Miller does not have a company policy of using



        4
          We also take note of a federal case from Mississippi recognizing this “unreasonably safe
area” theory of premises liability. Merritt v Wal-Mart Stores, 911 F. Supp. 242, 244-45 (S.D. Miss.
1995). In Meritt, the court reversed the summary judgment, which had been granted in Wal-Mart’s
favor pertaining to this theory, on the basis that the plaintiff’s expert’s deposition testimony created
a fact question about the unreasonably dangerous nature of the condition. Id. at 247.

                                                  10
floor mats or warning signs in the condiment bar area, and neither of these was present at the time

of Sova’s fall.

                  The parties’ primary point of disagreement about the condiment bar concerns the “ice

bath.” Sova alleged that ice can easily spill over or leak out of the condiment bar onto the floor. To

the contrary, Bill Miller’s manager of five years, Alan Scarborough, testified that the ice is kept

under a cover, not exposed on the surface of the condiment bar, and therefore could not fall from the

bar to the floor except when new ice is being filled into the bin. He further testified that ice is never

added to the condiment bar during the hours of operation; it is only filled once a day, in the morning.

Also, Bill Miller’s director of personnel, Stacy Huser, who had worked for the company for twenty-

three years, described the ice bin as a “long, narrow tub that fits . . . inside” the condiment bar. She

explained that, as the ice melts throughout the day, the water accumulates inside the bin, and after

the store closes, the rubber stopper inside the bin is unplugged, and the water drains into a five-

gallon bucket, which is then emptied. Scarborough acknowledged that, if the drainage bucket was

not emptied, water could overflow from the condiment bar, but he testified that this had only

happened twice in a five-year period.

                  Huser and Scarborough both testified that, although spills could occur near the

condiment bar, floor mats should not be placed in that area because they would pose a larger

“tripping hazard” than they would prevent slips, especially in light of the fact that Bill Miller has

alternative policies in place to keep the area safe. The company policies they testified about included

designating four employees—the busser, cashier, drink-filler, and manager—to be responsible for

patrolling the area throughout the day and, “if there’s anything there, to get it up.” Scarborough

testified that he and his employees “constantly” monitor the area and clean up any spills. The

                                                   11
employee manual reflects this general patrolling policy and also directs the cashier “to spot sweep

around the condiment bar at 12:30 to keep the floor clean.” Thus, Huser and Scarborough concluded

that, because there was such a low risk of slip-and-falls near the condiment bar—due to the enclosed

ice bin and drainage system, as well as the policies used to keep the area clean—it was not worth

incurring the greater hazard of trip-and-falls that would be created by the use of floor mats in the

area.

               Huser also testified that, as the director of personnel, she oversees all claims against

the company, including all accident reports filed by patrons, and that in her twenty-three years of

employment with Bill Miller, she was not aware of any other slip-and-fall claims arising from this

location. Scarborough confirmed that, in his five years as the manager of the Bill Miller location

where Sova fell, there had not been any other slip-and-falls.

               In an attempt to contradict Huser and Scarborough’s testimony, Sova offered the

testimony of Ken Henderson, who was Bill Miller’s assistant manager at the time of Sova’s fall but

had subsequently been terminated. Henderson averred that the floor in front of the condiment bar

was “generally slippery.” He claimed to have recommended to upper management that the “tile

floors [be replaced] with a different surface that would be more resistant to being slippery,” but

Scarborough denied that any such conversation occurred. Henderson further testified that the

condiment bar’s ice bin was replenished and its drainage bucket was emptied during the hours of

operation (rather than being filled before opening and drained after close) and that “[a]s a result, ice

is sometimes spilled on the floor.” Finally, Henderson testified that “[o]n occasion, I had customers

complain about the general slippery condition of the restaurant’s floors.” Nonetheless, Henderson




                                                  12
also confirmed that there had not been “any other slip-and-fall accidents by customers” during his

employment with Bill Miller.

               Even taking Henderson’s testimony as true, there is no genuine issue of material fact

about whether the condiment bar constituted an unreasonably dangerous condition about which Bill

Miller knew or should have known. Assuming that the floor surrounding the condiment bar was

“generally slippery,” or that ice occasionally fell from the condiment bar to the floor, as Henderson

averred, this is not evidence of an unreasonably dangerous condition that existed on the day or at the

time that Sova fell. No one disputes that the floor in that area could be slippery or that spills could

occur—but this does not make the area unreasonably dangerous, especially in light of the facts that

the area was constantly monitored for spills and that the ice bin and drainage system were enclosed,

lowering the possibility of fallen ice or leaked water.

               Finally, when relying on a theory that there was an unreasonably dangerous condition,

a plaintiff must produce evidence that would demonstrate some reason why the premises owner

knew or should have known that the area was unreasonably dangerous. Here, Henderson’s testimony

at most provides evidence of an occasional danger associated with the condiment bar, but it does not

tend to show that the area, generally speaking, was unreasonably dangerous. And, unlike the

plaintiffs in Corbin, Crosby, Taylor, and Erevia, Sova failed to put forth any affirmative evidence

to demonstrate that Bill Miller was aware of an unreasonable danger. See Corbin, 648 S.W.2d at

295; Crosby, 122 S.W.3d at 901; Taylor, 102 S.W.3d at 822, 824-25; Erevia, 73 S.W.3d at 523.

While a plaintiff is not barred from recovery simply because she was the first person to slip and fall

in an area, it is relevant that Sova was unable to produce any evidence of any prior slip-and-falls at

the restaurant. Considering that there had been no prior slip-and-falls, it would be difficult to

                                                  13
presume that Bill Miller should have regarded the area as unreasonably dangerous. Thus, we hold

that Sova failed to put forth a scintilla of evidence to raise a genuine issue of material fact about

whether Bill Miller had actual or constructive knowledge that its condiment bar area constituted an

unreasonably dangerous condition. See Huckabee, 19 S.W.3d at 422.


                                         CONCLUSION

               It was Sova’s burden to produce more than a scintilla of evidence demonstrating that

Bill Miller had actual or constructive knowledge of an unreasonably dangerous condition on its

premises, based on either a specific puddle that was on the floor long enough for Bill Miller to have

discovered and rectified it or on the manner in which the condiment bar was generally maintained.

Based on the evidence presented, no reasonable and fair-minded person could conclude that Bill

Miller was actually aware or should have been aware that either the puddle on the floor or the

condiment-bar area posed an unreasonably dangerous condition on its premises. See King Ranch,

118 S.W.3d at 751. Thus, Sova failed to satisfy her burden on either the first or second theory.

Accordingly, we overrule Sova’s only issue and affirm the summary judgment.




                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 30, 2006


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