Affirm and Opinion Filed October 25, 2013




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00652-CV

                      AGERAIN GILLESPIE, Appellant
                                 V.
 KROGER TEXAS, L.P., THE KROGER CO., and KROGER STORE No. 488, Appellees

                      On Appeal from the 366th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 366-01641-2011

                                          OPINION
                          Before Justices FitzGerald, Lang, and Myers
                                 Opinion by Justice FitzGerald
       This is a premises liability case arising out of a slip and fall in a grocery store bathroom.

The trial court granted summary judgment in favor of Kroger Texas, L.P., the Kroger Co. and

Kroger Store No. 488 (collectively, “Kroger”) on Agerain Gillespie’s claims. In two issues on

appeal, Gillespie asserts the trial court erred in granting summary judgment on traditional and

no-evidence grounds. Concluding Gillespie’s arguments are without merit, we affirm the trial

court’s judgment.

                                        BACKGROUND

       While grocery shopping with her husband at a Kroger store, Gillespie asked to use the

restroom. An employee directed her to a restroom located up a flight of stairs next to the

manager’s office. When she reached the restroom, Gillespie was unable to close the door all the
way because it was swollen and sticking. The first stall that she approached was dirty, so

Gillespie elected to use the other stall. As she turned to the right, she fell on the ceramic tile

floor. Specifically, Gillespie fell on her left side, hitting her left hip and knee on the floor and

breaking her left arm at the elbow. The Kroger manager was sitting in his office next door and

asked if everything was all right. When Gillespie responded that she had fallen, the manager

asked if he could come in. Gillespie responded affirmatively, and requested that the manager

page her husband. Gillespie remained on the floor and noticed that it was cool and damp, and she

could see footprints going toward the sinks. When Gillespie’s husband arrived in the restroom,

he wiped the floor with paper towels and used the towels to clean Gillespie’s hand, which was

wet and dirty. The floor was slippery as Gillespie’s husband and the manager tried to lift her up.

The manager rolled an office chair into the room and braced it with his body as he and the

husband lifted Gillespie into the chair and then rolled her into the office.

        The manager called an ambulance. As the crew was preparing to take Gillespie down the

stairs, the manager went back into the restroom to retrieve Gillespie’s purse. As he was picking it

up, Gillespie saw him slip and commented, “See how slippery it is?” The manager agreed that

the floor was slippery and stated that it was probably sweat or condensation from the pipes on

the floor.

        The manager prepared an incident report showing that the accident occurred on June 27,

2009, at 8:35 p.m. The report stated that the manager noticed there was a film on the floor and he

could see where Gillespie’s legs had hit the floor and disturbed the surface. The film appeared to

be around the stall doors. The description of the accident reads, “Damp film of water — not

puddling,” in an area that covered an area 6 feet by 6 feet.

        Gillespie subsequently filed suit against Kroger on a premises liability theory of

recovery. Kroger filed a traditional and no-evidence motion for summary judgment, and

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Gillespie responded. In support of her response, Gillespie filed her affidavit, the affidavit of her

husband, and an expert affidavit. Although Kroger objected to Gillespie’s summary judgment

evidence, there is no indication that the trial court ruled on the objections. Following a hearing,

the trial court entered an order granting Kroger’s motion and dismissing Gillespie’s claims with

prejudice. The order did not specify the specific grounds for the trial court’s ruling. This appeal

followed.

                                           ANALYSIS

       Gillespie asserts the trial court erred in granting a no-evidence and traditional summary

judgment in favor of Kroger. When a party files a hybrid summary judgment motion on both no-

evidence and traditional grounds, we first review the trial court’s judgment under the no-

evidence standard of review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If

the non-movant failed to produce more than a scintilla of evidence under the no-evidence

summary judgment provisions of Rule 166a(i), then there is no need to analyze whether the

movant’s summary judgment proof satisfied the burden set forth for traditional summary

judgment under Rule 166a(c). See TEX. R. CIV. P. 166a(c) & (d); East Hill Marine, Inc. v. Rinker

Boat Co., 229 S.W.3d 813, 816 (Tex. App.—Fort Worth 2007, pet. denied).

       In conducting our no-evidence summary judgment review, we review the evidence

presented by the motion and response in the light most favorable to the party against whom the

summary judgment was rendered, credit evidence favorable to that party if reasonable jurors

could, and disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary judgment motion should be

denied if the nonmovant presents more than a scintilla of probative evidence to raise a genuine

issue of material fact on the challenged element or elements. Forbes Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists

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when reasonable and fair-minded individuals could differ in their conclusions. Id. Less than a

scintilla of probative evidence exists if the evidence creates no more than a mere surmise or

suspicion of fact regarding a challenged element. Id.

       Therefore, we begin our analysis with the no-evidence motion for summary judgment.

Kroger’s no-evidence summary judgment challenged Gillespie’s premises liability claim;

specifically, Kroger asserted Gillespie had no evidence that Kroger knew or should have known

of the dangerous condition that caused her fall. Gillespie asserts the trial court erred in granting

summary judgment because the evidence supported an inference that Kroger knew or should

have known that there was a problem with moisture condensation in the women’s restroom that

posed an unreasonable risk of harm.

       To recover on a premises liability theory, a plaintiff must establish that the injury resulted

from a condition of the premises. Keetch v. The Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A

plaintiff must prove: 1) actual or constructive knowledge of some condition on the premises by

the owner/operator; 2) that the condition posed an unreasonable risk of harm; 3) that the

owner/operator did not exercise reasonable care to reduce or eliminate the risk; and 4) that the

owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Wal-Mart

Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). An owner or occupier is not an

insurer of injuries to its invitees. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).

Instead, the duty owed by an owner or occupier is to exercise reasonable care to protect against

dangerous conditions on the premises that create an unreasonable risk of harm which it knew

about, or by the exercise of reasonable care, would have discovered. Id.

       The threshold requirement for a premises liability claim is the existence of actual or

constructive knowledge of a condition on the premises. See Motel 6 G.P., Inc. v. Lopez, 929




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S.W.2d 1, 3 (Tex. 1996). “An owner/occupier cannot breach a duty that it does not owe, and it

does not owe a duty to correct an alleged dangerous condition of which it is not aware.” Id. at 4.

       The summary judgment record includes deposition testimony from the Kroger manager

stating that Kroger had never experienced a problem in the restroom and was not aware that the

condition existed. In response, Gillespie filed the affidavit of an expert, George Teer. Teer

conducted an inspection of the restroom approximately two and a half years after the incident.

The report attached to Teer’s affidavit stated that “there had likely been a leak or significant

moisture problem in the women’s restroom at some time.” The report further stated that “the sink

drain piping and the floor below the sink . . . indicated prior leaks.”

       Gillespie also relies on the fact that the restroom was located up a flight of steps and not

readily accessible to Kroger’s customers to infer that the restroom was used primarily by Kroger

employees. Gillespie contends that being unable to completely close the swollen door of the

restroom is indicative of a “high presence” of moisture. Because the patch of slippery film was

described as filthy, and there were footprints from the toilet stalls to the sinks, Gillespie contends

the evidence shows the condition developed over a period of time. Gillespie further relies on the

manager’s comment that the slippery spot was probably caused by condensation.

       Significantly, the unreasonably dangerous condition for which a premises owner may be

liable is the “condition at the time and place the injury occurs, not some antecedent situation that

produced the condition.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006).

Moreover, as the Brookshire court observed, “[t]he rule requiring proof that a dangerous

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

constructive notice is firmly rooted in our jurisprudence.” Id. at 409.

       Here, Gillespie failed to provide any evidence that Kroger had actual or constructive

knowledge of the condition of the restroom at the time of her fall. Although Gillespie’s expert

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opined that there had been a leak “at some time,” there is no evidence to establish that there was

a leak on the day of the incident, or to establish exactly what had occurred to cause the floor to

be slippery. There is also no evidence that the leak or other dangerous condition existed long

enough for Kroger to have discovered it upon reasonable inspection. See Bowman v. Brookshire

Grocery Co., 317 S.W.3d 500, 505 (Tex. App.—Tyler 2010, pet. denied). Gillespie requests that

we indulge an inference of knowledge based on the circumstantial evidence. But “meager

circumstantial evidence from which equally plausible inferences may be drawn is speculative

and thus legally insufficient to support a finding.” Wal-Mart v. Gonzalez, 968 S.W.2d 934, 936

(Tex. 1998). On this record, we conclude that Gillespie failed to bring forth more than a scintilla

of evidence to establish actual or constructive knowledge of the condition of the restroom, and

therefore the trial court did not err in granting Kroger’s no-evidence motion for summary

judgment on Gillespie’s premises liability claim. Gillespie’s first issue is overruled.

       Our resolution of Gillespie’s first issue obviates the need to consider her remaining issue.

See TEX. R. APP. P. 47.1. The judgment of the trial court is affirmed.




       120652F.P05                                    /Kerry P FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

AGERAIN GILLESPIE, Appellant                         On Appeal from the 366th Judicial District
                                                     Court, Collin County, Texas
No. 05-12-00652-CV         V.                        Trial Court Cause No. 366-01641-2011.
                                                     Opinion delivered by Justice FitzGerald.
KROGER TEXAS, L.P., THE KROGER                       Justices Lang and Myers participating.
CO., and KROGER STORE No. 488
Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
     It is ORDERED that appellees KROGER TEXAS, L.P., THE KROGER CO., and
KROGER STORE No. 488 recover their costs of this appeal from appellant AGERAIN
GILLESPIE .


Judgment entered October 25, 2013




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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