Affirmed and Opinion Filed December 22, 2014




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                    No. 05-13-01436-CV

                                           PATSY SALINAS, Appellant
                                                     V.
                                         AT&T SERVICES, INC., Appellee

                               On Appeal from the 160th Judicial District Court
                                            Dallas County, Texas
                                    Trial Court Cause No. DC-12-04311


                                        MEMORANDUM OPINION
                                Before Justices FitzGerald, Fillmore, and Stoddart
                                         Opinion by Justice FitzGerald

          Appellant Patsy Salinas sued appellee AT&T Services, Inc., alleging that she sustained

personal injuries in a slip-and-fall accident on appellee’s premises. The trial judge granted

summary judgment in favor of appellee. We conclude appellant adduced no evidence that

appellee possessed actual or constructive knowledge of an unreasonably dangerous condition on

the premises at the time of the alleged accident. Accordingly, we affirm.

                                                      I. BACKGROUND

          Appellant alleged the following facts in her live pleading.1 Appellant was an employee

of Johnson Controls. Appellee hired Johnson Controls to monitor a building in Greenville,

     1
       See Ely v. Gen. Motors Corp., 927 S.W.2d 774, 782 (Tex. App.—Texarkana 1996, writ denied) (although pleadings are not proof, they
frame the issues for purposes of summary judgment).
Texas, that was owned and maintained by appellee. On or about July 1, 2010, appellant was on

appellee’s premises as an invitee. Appellant was walking up an exit stairwell of the building.

Water or condensation had accumulated on the staircase and on the railing, making the staircase

unreasonably dangerous. Appellant slipped and fell while walking up the staircase, causing her

to suffer physical injuries.

              Appellee answered and eventually filed a traditional and no-evidence motion for

summary judgment. Appellee asserted that appellant could produce no evidence that appellee

had actual or constructive knowledge of an unreasonably dangerous condition on the premises.

Appellee also contended that appellant could produce no evidence that appellee did not exercise

reasonable care to reduce or eliminate the alleged risk. As traditional grounds, appellee argued

that the evidence affirmatively negated the element of actual or constructive knowledge.

Appellant filed a response with evidence attached, and appellee filed a reply brief. The trial

judge granted appellee’s motion.

              On appeal, appellant argues in three issues that (1) the evidence raised a genuine fact

issue as to appellee’s actual knowledge of a dangerous condition, (2) the evidence raised a

genuine fact issue as to appellee’s constructive knowledge of a dangerous condition, and (3) the

evidence raised a genuine fact issue as to whether appellee breached its duty of care.

                                                           II. ANALYSIS

              We resolve this appeal based on one of appellee’s no-evidence grounds for summary

judgment.          Our standard of review is de novo.2                          The question presented is whether the

nonmovant adduced sufficient evidence to raise a genuine issue of fact on the challenged

elements.3 We employ the same legal-sufficiency standard that we use in reviewing directed


    2
        See Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.—Dallas 2009, no pet.).
    3
        Id.



                                                                   –2–
verdicts.4 Thus, we consider the evidence in the light most favorable to the nonmovant, crediting

evidence that a reasonable jury could credit and disregarding contrary evidence and inferences

unless a reasonable jury could not.5

             The parties do not dispute that this is a premises-liability case or that appellant was an

invitee on the premises. The elements of appellant’s claim are (1) appellee had actual or

constructive knowledge of a condition on the premises, (2) the condition posed an unreasonable

risk of harm, (3) appellee did not exercise reasonable care to reduce or eliminate the risk, and (4)

appellee’s failure to use reasonable care proximately caused appellant’s injuries.6 The first

element requires evidence that the premises owner or operator knew about the condition or

would have discovered the condition in the exercise of reasonable care.7                               Texas has long

recognized that a dangerous condition must have existed for some length of time before a

premises owner can be charged with constructive notice.8 “[T]here must be some proof of how

long the hazard was there before liability can be imposed on the premises owner for failing to

discover and rectify, or warn of, the dangerous condition.”9

             In her summary-judgment response, appellant argued that she slipped and fell because the

stairs and handrail were wet. As evidence, she filed her own deposition testimony to the effect

that there was water standing on the steps and the handrails were sticky at the time of the

accident. The question presented is whether appellant adduced any evidence that appellee had

actual or constructive knowledge of those wet conditions.



   4
       Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
   5
       Id.
   6
       See Gillespie v. Kroger Tex., L.P., 415 S.W.3d 589, 592 (Tex. App.—Dallas 2013, pet. denied).
   7
       Id.
   8
       See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex. 2006).
   9
       Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002).



                                                                    –3–
           As to actual knowledge, appellant argues that the evidence shows that a manager named

James Hart had actual knowledge of the dangerous condition that allegedly caused appellant’s

injuries.10 We disagree. The summary-judgment evidence includes Hart’s deposition testimony

that he was notified about and investigated appellant’s accident three or four days after the fact.

In his investigation report, Hart made the following conclusions about the causes of the accident:

           WEATHER: It had been raining off and on for several days prior to and on the
           day of the accident. OTHER: A roof hatch at the top of the stairwell allows
           access to the cooling towers and other equipment on the roof. The cooling tower
           was being cleaned & worked on for a couple of days. The hatch was in the open
           position while the Techs were on the roof, the extreme humidity accumulated on
           the handrails and in the stairwell. The humidity caused the steel rails to become
           extremely sticky and was not pleasant to the touch. Your hand became as sticky
           as the handrail if you touched it.

In Hart’s deposition, he testified generally that humid conditions occasionally arose in the

stairwell: “And about three—well, two or three times a year, there’s a lot of humidity. It does

seep into the stairwell due to the doors opening and closing. There’s no place for it to go.”

           But there was no evidence that Hart knew that the humidity or the open roof hatch ever

caused water to condense on the stairs themselves. In fact, he denied that the roof hatch ever led

to the presence of water on the steps themselves, and he further testified, “I’ve never noticed the

stairs being slick due to the roof hatch being open.” As to the condition of the handrails in the

stairwell, Hart was asked in deposition if he believed that the handrails were sticky at the time of

the accident, and he answered, “I don’t believe; I know. They were sticky.” He then clarified in

his deposition testimony that, more specifically, he knew the handrails had been sticky several

days before the accident:

           Q.         So the actual condition of the stairs and the handrail at the time that she
                      alleges that she fell, you don’t know anything—you wouldn’t have the
                      ability to testify to that, would you?

     10
        Appellant disputes that there is any evidence that Hart was appellant’s employee, but for purposes of our analysis we will assume without
deciding that there was some evidence to support this fact.



                                                                     –4–
           A.         I know that—not to that specific, but I do know the Thursday and Friday
                      before, the handrails were sticky as well.

But appellant alleged that the dangerous condition she encountered consisted of water or

condensation on both the stairs and the handrail. So, even assuming that the evidence raises a

fact issue as to whether Hart had some knowledge that the handrails were wet at the time of the

accident, there is still no evidence that he possessed any knowledge that the stairs were wet. And

appellant points to no other evidence that anyone else possessed actual knowledge of the

condition of the stairwell and handrails at the time of the accident.

           Next, we consider whether there was any evidence that appellee possessed constructive

knowledge that the stairs and handrails were wet at the time of the alleged accident. A premises

owner has constructive knowledge of a dangerous condition if the condition existed long enough

to give the premises owner a reasonable opportunity to discover it.11 Thus, there must be some

proof of how long the hazard existed.12 We conclude appellant produced no evidence of how

long the alleged wet conditions existed before she encountered them.             The evidence was

conflicting as to the date of the accident; some evidence pointed to Thursday, July 1, 2010, while

other evidence pointed to Monday, July 5, 2010. Either way, there is no evidence showing how

long the steps and handrails were wet before she encountered those wet conditions. Appellant

points to evidence showing that it had rained the day of the accident and the Thursday and Friday

before the accident, but it would be sheer speculation for us to guess when the rain outside and

the humidity inside the stairwell actually coalesced to cause the dangerous conditions she

allegedly encountered. Likewise, Hart’s testimony that the handrails had been sticky a few days

before the alleged accident does not show that those conditions had persisted and were actually

the same ones that appellant encountered at the time of her accident. Speculation and conjecture
   11
        Wal-Mart Stores, Inc., 81 S.W.3d at 814.
   12
        Id. at 816.



                                                    –5–
will not suffice to preclude summary judgment.13 We conclude appellant adduced no evidence of

how long the steps and handrails had been wet before she encountered those wet conditions, so

she adduced no evidence of constructive notice to appellee.14

            Because appellant produced no evidence that appellee possessed actual or constructive

knowledge of the dangerous condition that allegedly caused her injuries, the trial judge properly

granted summary judgment for appellee. We reject appellant’s first two issues on appeal and

need not address her third issue concerning the element of breach of the duty of care.

                                                         III. DISPOSITION

            We affirm the judgment of the trial court.




131436F.P05                                                               /Kerry P. FitzGerald/
                                                                          KERRY P. FITZGERALD
                                                                          JUSTICE




     13
          See Connaway v. Vill. Farms, L.P., 200 S.W.3d 353, 358 (Tex. App.—Dallas 2006, no pet.).
     14
       See Wal-Mart Stores, Inc., 81 S.W.3d at 816–17 (rendering judgment for premises owner in part because there was no evidence to show
how long puddle had been on floor when plaintiff slipped in it).



                                                                    –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PATSY SALINAS, Appellant                             On Appeal from the 160th Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-01436-CV         V.                        Trial Court Cause No. DC-12-04311.
                                                     Opinion delivered by Justice FitzGerald.
AT&T SERVICES, INC., Appellee                        Justices Fillmore and Stoddart participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee AT&T Services, Inc. recover its costs of this appeal from
appellant Patsy Salinas.


Judgment entered December 22, 2014.




                                               –7–
