      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00057-CV



                                    Sarah Simon, Appellant

                                                 v.

                             Johns Community Hospital, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 06-181-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Sarah Simon alleges that she was injured when she slipped on a foreign

substance on a hallway floor in Taylor’s Johns Community Hospital. At the time, Simon was

employed as a nurse at the Hospital. Simon brought a “non-subscriber” suit against the Hospital,

alleging negligence in failing to provide her a safe workplace. The Hospital filed a motion for

summary judgment under the “no evidence” standard of Tex. R. Civ. P. 166a(i). The Hospital

asserted that there was no evidence that it had actual or constructive knowledge of the substance on

the floor, an essential element Simon must prove to establish the Hospital’s liability to her as an

invitee. See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).1 Simon filed a




       1
         There is no dispute that Simon, as an employee, has the status of an invitee. See
Brookshire Grocery Co. v. Goss, 208 S.W.3d 706, 712 (Tex. App.—Texarkana 2006, pet. filed)
(acknowledging “the well-established basic principle that employees are treated as invitees”).
response and attached evidence. The district court granted the motion and rendered final judgment

that Simon take nothing on her claims. Simon appealed. We will affirm the judgment.

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). 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). A no-evidence summary judgment is essentially a directed verdict granted

before trial, to which we apply a legal-sufficiency standard of review.           King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Perdue v. Patten Corp., 142 S.W.3d

596, 603 (Tex. App.—Austin 2004, no pet.). A no-evidence summary judgment will be sustained

when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively

establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in

the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id.

(citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). More than a

scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded people

to differ in their conclusions. Id. “Less than a scintilla of evidence exists when the evidence is ‘so




                                                  2
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)).

               In her first issue, Simon contends that the district court erred in granting summary

judgment because she pled general negligence theories that are not subject to the limitations or

“sub-issues” that apply to premises liability claims. Specifically, Simon argues that she “pled and

produced evidence that [the Hospital] not only failed to provide a safe place to work, but failed to

provide proper safety training and supervision to employees and failed to develop and enforce proper

policies and procedures regarding the inspection and cleaning of the common area hallway

floors” where she allegedly fell.         See, e.g., Burk Royalty Co. v. Walls, 616 S.W.2d

911, 923-24 (Tex. 1981) (employer has duty to provide rules and regulations for the safety of

employees); Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975) (“It is well established that

an employer has certain nondelegable and continuous duties to his employees. Among these are the

duty to . . . furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe

instrumentalities with which employees are to work.”). These are all aspects of an employer’s duty

to use ordinary care in providing a safe work place. See Kroger Co. v. Elwood, 197 S.W.3d

793, 794-95 (Tex. 2006) (per curiam); Moore v. J. Weingarten, Inc., 523 S.W.2d 445, 447 & n.2

(Tex. Civ. App.—Beaumont 1975, writ ref’d n.r.e.). Although “[a]n employer is not an insurer of

its employees’ safety at work . . . an employer does have a duty to use ordinary care in providing a

safe work place.” Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).

               The focus of Simon’s negligence allegations—what she claims the Hospital should

have prevented, remediated, warned about, trained about, or had policies or procedures to prevent



                                                  3
or discover—is the substance on the floor on which she allegedly slipped. As Simon acknowledges

in her brief, her “entire liability case revolves on whether the substance on the floor was a dangerous

condition.” The imposition of negligence liability for injury caused by a dangerous condition, as

contrasted with injury that is the contemporaneous result of negligent activity, is what distinguishes

a premises defect claim from a claim of ordinary negligence. See, e.g., Keetch v. Kroger Co.,

845 S.W.2d 262, 264 (Tex. 1992). Under such circumstances, this Court, reasoning that the

employer’s duty to provide a safe work place is coextensive with its standard of care to

invitees generally, has imposed the elements of a premises liability cause of action. See Jackson

v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App.—Austin 1998, no pet.) (“To prevail on her

premises liability claim [arising from slip-and-fall], Jackson must prove that Fiesta failed to maintain

a safe work place. . . . The employer’s standard of care for employees is therefore the same as the

standard of care for invitees generally. Accordingly, before Fiesta can be held to have breached its

duty to maintain a safe work place, Jackson must show as a threshold issue that Fiesta knew, or

after reasonable inspection should have known, of an unreasonably dangerous condition.”).

Our sister courts have done the same.            See Allen v. Connolly, 158 S.W.3d 61, 65-66

(Tex. App.—Houston [14th Dist.] 2005, no pet.); Hall v. Sonic Drive-In of Angleton, Inc.,

177 S.W.3d 636, 644 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Moore, 523 S.W.2d at

447. In fact, the supreme court has observed in such a context that “the nature of the duty of the

landowner to use reasonable care to make his premises reasonably safe may, in all material respects,

be identical with the nature of the duty of the master to use reasonable care to provide his




                                                   4
servant with a reasonably safe place to work.” Sears, Roebuck & Co. v. Robinson, 280 S.W.2d

238, 240 (Tex. 1955).

               Simon insists that she is not required to prove the elements of a premises liability

claim because an employer’s duty to its employees to provide them a safe work place is conceptually

distinct and independent from the duties the employer owes to invitees generally. She points to

language in the supreme court’s Sears decision to the effect that “[t]he two fields of law (landlord-

invitee and master-servant), are entirely separate and should be kept so.” Id. at 240. Simon portrays

this statement as a general principle that employee negligence claims against non-subscribers can

never be subject to premises liability standards, but she divorces this language from the context in

which the supreme court used it. Sears involved a suit by Robinson, a Sears employee, who alleged

that he had been injured when slipping on oil that had spilled in a Sears warehouse. Id. at 238.

Robinson had been aware of the oil spill prior to the accident. Id. at 239. Robinson sued Sears, a

non-subscriber, for negligence and recovered a judgment for damages. See id. at 238. Before the

supreme court, Sears argued that there was no evidence of its negligence because it owed no duty

to its invitees regarding “open, obvious and known” dangers. Id. at 239. The supreme court rejected

that argument, reasoning that this concept had not previously been applied to the master-servant

context and that doing so would be inconsistent with the legislature’s elimination of the assumption-

of-the-risk defense in non-subscriber cases. See id. at 239-40. It was in this respect that the supreme

court admonished that premises liability law and master-servant law “are entirely separate and should

be kept so.” Id. at 240. In its next sentence, however, the supreme court stated the general principle

that “the nature of the duty of the landowner to use reasonable care to make his premises reasonably



                                                  5
safe may, in all material respects, be identical with the nature of the duty of the master to use

reasonable care to provide his servant with a reasonably safe place to work.” Id. We reject Simon’s

reading of Sears. See Moore, 523 S.W.2d at 447.2

               This does not mean that every negligence claim brought by an employee against a

non-subscriber employer is “inherently a premises liability suit,” as Simon urges. As the Hospital

observes, “[h]ad there been issues in the instant case not purely dependent on the existence of this

dangerous condition, and on Johns Community Hospital’s knowledge of its presence, this would not

have been a premises liability case.” But where, as here, an employee seeks damages for injuries

caused by a dangerous condition, he or she must prove the elements of a premises liability cause of

action. Jackson, 979 S.W.2d at 71. We overrule Simon’s first issue.

               In her second issue, Simon argues in the alternative that she has raised a fact issue

concerning the Hospital’s actual or constructive knowledge that a dangerous condition existed. The

relevant dangerous condition here is the substance on the floor in which Simon slipped.

See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408-10 (Tex. 2006) (ice on floor was

the relevant dangerous condition, not an ice dispenser from which ice tended to fall on the floor);

City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536-37 (Tex. 1996) (leaky roof was not itself the

dangerous condition, but a cause of the dangerous condition of a wet floor below). Simon described

the substance as having the appearance of “chewed up Kellogg’s corn flakes spit on the floor.”




       2
         As Simon emphasizes, language in the Texarkana Court of Appeals’ Goss decision may
be consistent with her view of Sears. 208 S.W.3d at 717-19. As the Hospital observes, however,
Goss arguably is ultimately a “negligent activity” case rather than a premises liability case, as the
claims centered on the store’s manner of using “lowboy” carts. See id. at 714-16.

                                                 6
                To prove the Hospital’s actual or constructive knowledge that this substance was on

the hallway floor, Simon must show: (1) the Hospital itself placed the substance on the floor;

(2) the Hospital actually knew the substance was on the floor; or (3) it was more likely than not

that the substance had been on the floor long enough to provide the Hospital a reasonable

opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002);

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Simon has not asserted that

the substance was placed on the floor by the Hospital or its employees, nor has she claimed that a

hospital employee actually knew of it. As for the amount of time the substance had been on the

hallway floor, Simon points to evidence that along the same hallway, another employee had cleaned

up “[a] small piece of cereal” that she thought was Captain Crunch. Besides the distinctions between

the substances, the evidence does not reflect the amount of time between when the piece of Captain

Crunch was cleaned up and when Simon fell, and the employee who cleaned it up did not know

which event had occurred first. This evidence is insufficient to raise a fact issue concerning

the Hospital’s constructive knowledge that the substance in which Simon slipped was on the floor.

See Reece, 81 S.W.3d at 816-17.3

                As the supreme court emphasized in Reece, “[t]he rule requiring proof that a

dangerous condition existed for some length of time before a premises owner may be charged with




        3
           Beyond this, Simon urges us to infer constructive knowledge of the condition from
evidence that, in a hospital setting, it is not unusual for foreign substances to be deposited on hallway
floors by people “crying, bleeding, vomiting, and dropping substances.” This evidence is insufficient
to support an inference that the Hospital had constructive knowledge of the presence of the substance
in which Simon slipped. See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408-10
(Tex. 2006).

                                                   7
constructive notice is firmly rooted in our jurisprudence. . . . The rule emerged from our reluctance

to impose liability on a [premises owner] for the carelessness of another over whom it had no control

or for ‘the fortuitous act of a single customer’ that could instantly create a dangerous condition.” Id.

at 815-16 (citations omitted). Applying this established principle, we overrule Simon’s second issue.

                  Having overruled Simon’s issues on appeal, we affirm the judgment of the

district court.



                                                ____________________________________________

                                                Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: June 4, 2008




                                                   8
