                                     In The

                              Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-18-00447-CV
                             __________________

                       ALICIA VALENTINE, Appellant

                                       V.

            ASA HOLDINGS REAL ESTATE MANAGEMENT,
              ASA HOLDINGS, LP, MOHAMMED ALI AND
                   SULTANA MUNNAZER, Appellees

__________________________________________________________________

                On Appeal from the 58th District Court
                       Jefferson County, Texas
                      Trial Cause No. A-199,856
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant Alicia Valentine (“Appellant” or “Plaintiff”) appeals the trial

court’s grant of a summary judgment in favor of Appellees ASA Holdings Real

Estate Management, ASA Holdings, LP, Mohammed Ali, and Sultana Munnazer

(collectively “Appellees” or “Defendants”). We affirm.



                                        1
                                    Background

      Valentine alleges that she fell on the walkway into the building located at 155

Interstate 10 in Beaumont, Texas. She alleged in her Original Petition that she fell

due to the concrete on the premises being in an “unreasonably dangerous condition,”

and that the Defendants owned and operated the premises and failed to warn of the

condition or make it reasonably safe. In her deposition, Valentine testified that she

had a doctor’s appointment that day and her doctor’s office is in the office building

at 155 Interstate 10 in Beaumont, Texas. She claims that when she was walking from

the parking lot into the building, she stepped on a piece of concrete that shifted and

she fell forward and hurt her knees. According to Valentine, she was an invitee on

the premises where the incident occurred, and the Defendants owed her a duty to

exercise ordinary care to inspect the premises, make and keep the premises safe, and

to warn of dangers. Valentine argued that Defendants knew or should have known

that the condition of the concrete on the premises created an unreasonable risk of

harm to invitees; knew or should have known the condition created a risk that

invitees would be injured; failed to exercise ordinary care to reduce or eliminate the

risk; and failed to warn invitees, including Valentine. Valentine sought damages for

past and future medical expenses, physical impairment, physical pain, mental



                                          2
anguish, disfigurement, and loss of earning capacity in an amount over $100,000 but

less than $200,000.

      Defendants filed an answer asserting a general denial and affirmative

defenses. Thereafter, Defendants filed a traditional and no-evidence motion for

summary judgment. Defendants included as an exhibit a transcript of Valentine’s

deposition testimony. Defendants argued they were entitled to summary judgment

because:

      . . . there is no evidence: (1) that the alleged condition posed an
      unreasonable risk of harm to Plaintiff; (2) that Defendants had actual
      knowledge of the alleged dangerous condition prior to the time Plaintiff
      fell and injured herself; or (3) that Defendants had prior constructive
      knowledge of the alleged dangerous condition—i.e., that such
      condition existed for such a length of time that Defendants, in the
      exercise of ordinary care, should have discovered it.

      In her response Valentine argued that “[a] reasonably careful inspection by

Defendants would have revealed the unreasonably dangerous condition[.]”

Valentine further argued that “Defendants allowed the piece of concrete to remain

in disrepair long enough for the concrete to become unattached from the other

concrete and the underlying ground and/or to rest unevenly on the underlying

ground.” Valentine argued that “[i]t was foreseeable to Defendants that the piece of

unstable and detached concrete in the walkway to a professional office building



                                         3
would move when stepped on and that someone might fall due to the piece of

concrete moving under foot.”

      Valentine alleged in her response that “Defendants have failed to conclusively

show . . . that they lacked pre-incident constructive or actual knowledge of the

condition and its danger[.]” Valentine also argued that “if Defendants had adequately

inspected the area, then they would have discovered the unstable condition of the

piece of concrete.” Valentine argued that the condition was “akin to an unmarked

trap door[.]” And, she argued that “[f]act questions exist.”

      She also attached an affidavit to her response.1 In her affidavit, Valentine

stated that the incident occurred as she was entering the office building for a doctor’s

appointment. Valentine alleged she stepped on a piece of concrete that appeared

level and flush to the ground, but that as she stepped on it, the concrete shifted and

threw her forward, and she fell and skinned her knees and hands. According to

Valentine, it was only after she fell that she realized the piece of concrete onto which

she had stepped was detached and had separated from the adjacent concrete and

created “an un-stable walking surface.” Valentine did not know whether other people

had fallen due to the “unstable piece of concrete” and she had not heard of anyone



      1
      Also attached to her response were certain billing records from the City of
Beaumont for emergency medical services and the affidavit of her attorney.
                                      4
slipping, tripping, or falling in the area. In her affidavit, Valentine made the

following allegations related to the condition of the concrete:

      • “The piece of concrete on which I stepped was laying flush in the
        ground, as I stated in my deposition; it was not lifted up. The
        walking surface of the piece of concrete on which I stepped appeared
        to be a level walking surface; not lifted up. . . . At the time of the
        incident and before, I could not tell or appreciate that the piece of
        concrete on which I stepped was not attached horizontally to the
        surrounding concrete or that the ground under the piece of concrete
        was not flush to the bottom of the piece of concrete on which I
        stepped. At the time of the incident and before, I could not tell or
        appreciate that the piece of concrete on which I stepped would throw
        my body when I stepped on it like being shot out of a catapult.”

      • “Only after I fell I realized that the piece of concrete on which I
        stepped was not attached to the other concrete next to it and that the
        bottom of the piece of concrete on which I stepped was not totally
        attached to or not resting evenly on the underlying ground. After I
        fell, I realized that over time, the adjacent concrete and the ground
        under the piece of concrete had separated from the side and bottom
        of the piece of concrete on which I stepped.”

      • “Prior to the incident, I could not tell that the piece of concrete on
        which I stepped was not attached to the other concrete or to the
        ground itself or that it was not resting evenly on the underlying
        ground.”

      • “Before the date of the incident, I did not know that the piece of
        concrete was unstable for walking purposes at the location of the
        incident. Prior to and at the time of the incident, the unstable
        condition of the piece of concrete was not easily perceptible to me;
        it just appeared as a level walking surface as I looked ahead of me.”




                                          5
       • “[A]t the time of the incident, I could not and did not perceive that
         the location of the incident contained a piece of concrete that was
         unattached to the other concrete and to the ground itself.”

       • “At the time of the incident, the piece of concrete appeared to me to
         be a flat, stable walking surface from facts within my present or past
         knowledge, as I was not aware that the concrete was not attached to
         the other concrete or to the ground itself.”

       • “Before the incident, the Defendants had not made the unstable
         piece of concrete at the location of the incident reasonably safe for
         stepping and the Defendants and no one else had not warned me of
         the unattached nature and condition of the piece of concrete at the
         location of the incident.”

       • “Prior to the incident, I had not slipped, tripped or fallen on the
         subject unattached piece of concrete at the location of the incident
         and I had not seen anyone slip, trip or fall in the area of the incident
         and I had not heard of anyone slipping, tripping or falling in the area
         of the incident.”

       In her deposition, Valentine testified that she had been going to see that doctor

once a month, every month, she had been to his office once in “January, February,

March, April, May, June, July[,]” and she fell in October. Valentine stated that, at

the time of her fall, she was wearing “clear slippers[]” with a strap between the big

toe and second toe and no strap on the heel. In her deposition, Valentine described

her fall:

       I fell for -- I broke my fall forward. It had a piece of concrete that was
       broken that was shifted and when I stepped on it, . . . it threw me and
       that’s how I flew -- that’s how I end up falling forward and skinning
       my knees and -- and my hands.

                                           6
Valentine testified that she fell forward and broke her fall with her hands. According

to Valentine, the broken piece of concrete was lying flush to the ground.

      Defendants filed a reply to Valentine’s response and argued that Valentine

failed to produce more than a scintilla of evidence on more than one of the four

elements of her premises liability claim. Defendants argued that there is no evidence:

(1) that the alleged condition posed an unreasonable risk of harm to Plaintiff; (2) that

Defendants had actual knowledge of the alleged dangerous condition prior to the

time Plaintiff fell and injured herself; or (3) that Defendants had prior constructive

knowledge of the alleged dangerous condition, i.e., that such condition existed for

such a length of time that Defendants, in the exercise of ordinary care, should have

discovered it. The Defendants also argued that Valentine failed to produce sufficient

evidence to raise a genuine issue of material fact regarding whether the condition

posed an unreasonable risk of harm and “[n]one of the statements made in Plaintiff’s

Affidavit regarding the alleged dangerous condition (i.e., the loose concrete) prove

that such condition did in fact pose an unreasonable risk of harm to Plaintiff.”

Defendants argued that Valentine had presented no evidence that the instability of

the concrete rose to the level of an unreasonable risk of harm and that expert

testimony was necessary on this point. According to Defendants, Valentine’s

allegation that the concrete was unstable amounted to mere surmise or suspicion.

                                           7
      The trial court granted Defendants’ Motion for Traditional and No-Evidence

Summary Judgment and ordered that all claims brought by Valentine against the

Defendants should be dismissed. Valentine filed a motion for new trial, which was

overruled by operation of law. See Tex. R. Civ. P. 329b(c).

                                        Issues

      In three issues, Valentine argues the trial court erred in granting Defendants’

motion for summary judgment because: (1) “Defendants did not meet their burden,

as a matter of law, regarding unreasonable risk of harm and Defendants’ constructive

knowledge of the alleged dangerous condition[]”; (2) she raised fact issues regarding

unreasonable risk of harm and Defendants’ constructive knowledge of the alleged

dangerous condition; and (3) there are disputed fact issues regarding unreasonable

risk of harm and Defendants’ constructive knowledge. Appellees argue that

Valentine failed to present more than a scintilla of evidence that the condition of the

premises posed an unreasonable risk of harm or that Appellees had constructive

knowledge of the condition.

                                 Standard of Review

      Where, as here, a defendant moves for both traditional and no-evidence

summary judgment and the trial court grants summary judgment without stating its

grounds, we first review the trial court’s decision as to the no-evidence motion for

                                          8
summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004); Martinez v. Leeds, 218 S.W.3d 845, 849 (Tex. App.—El Paso 2007, no pet.).

If the non-movant failed to produce more than a scintilla of evidence raising a

genuine fact issue of material fact on one or more of the challenged elements of her

claim, we need not address whether traditional summary judgment was proper. See

Ridgway, 135 S.W.3d at 600; Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662 (Tex.

App.—Houston [14th Dist.] 2012, pet. denied).

      We review summary judgment orders de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under Rule 166a(i) a party may move for

a no-evidence summary judgment on the ground 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. See Tex. R. Civ. P. 166a(i). The trial court may grant a

no-evidence motion for summary judgment unless the nonmovant brings forth more

than a scintilla of evidence to raise a genuine issue of material fact on the elements

challenged by the motion. See id.; Ridgway, 135 S.W.3d at 600. More than a scintilla

of evidence exists when the evidence rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions. Ridgway, 135 S.W.3d at 601.



                                          9
      If “‘the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a

scintilla and, in legal effect, is no evidence.’” Id. (quoting Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In determining whether the nonmovant has

produced more than a scintilla of evidence, we view the evidence in the light most

favorable to the nonmovant and disregard all contrary evidence and inferences. Id.;

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

      Here, Appellees alleged there was no evidence Appellees had actual or

constructive knowledge of any unreasonably dangerous condition on the premises

and failed to make the premises safe or failed to warn Valentine of the condition.

Because Appellees alleged there was no evidence of these essential elements of a

premises liability claim, the burden shifted to Valentine to identify more than a

scintilla of evidence raising a genuine issue of material fact. See Tex. R. Civ. P.

166a(i).

                                 Premises Liability

      In Texas, a landowner owes a duty to use reasonable care to make and keep

its premises safe for business invitees. Clayton W. Williams, Jr., Inc. v. Olivo, 952

S.W.2d 523, 527 (Tex. 1997). A landowner is not an insurer of the safety of his

guests and liability may not be imposed merely because someone is injured. Austin

                                         10
v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also Thoreson v.

Thompson, 431 S.W.2d 341, 344 (Tex. 1968) (“the fact an accident happens is no

evidence that there was an unreasonable risk of such an occurrence[]”).

      The parties agree that Valentine asserted a premises liability claim. See Austin,

465 S.W.3d at 216 (“When an injury arises from a premises condition, it is often the

case that any resulting claim sounds exclusively in premises liability[.]”). The

elements of a cause of action for a premises liability claim are: (1) the existence of

a condition of the premises creating an unreasonable risk of harm, (2) the landowner

knew or should have known of the existence of the condition, (3) the landowner

failed to use reasonable care to reduce or eliminate the risk by rectifying or warning

of the condition, and (4) such failure was a proximate cause of plaintiff’s injury.

Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014); CMH Homes, Inc. v.

Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

      In premises liability cases, “the duty owed to the plaintiff depends upon the

status of the plaintiff at the time the incident occurred.” W. Invs., Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005) (citing M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675

(Tex. 2004); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295-96 (Tex. 1983)).

The parties agree that Valentine was an invitee. A property owner or occupier in a

premises liability case owes an invitee a duty to use ordinary care to reduce or

                                          11
eliminate an unreasonable risk of harm created by a premises condition which the

owner or occupier of land knows about or in the exercise of ordinary care should

know about. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753

(Tex. 1998); Austin, 465 S.W.3d at 202.

      A condition is not unreasonably dangerous simply because it is not foolproof.

Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).

      Many building materials will, over time, deteriorate and require repair
      or replacement. That does not necessarily mean that the owner or
      occupier has created a dangerous condition or that the owner has actual
      or constructive knowledge of a dangerous condition. For example, we
      know that asphalt roads will develop potholes over time and will require
      repair. That does not mean that asphalt roads constitute an unreasonable
      risk of harm from the day they are constructed.

Daenen, 15 S.W.3d at 101-02. “A condition is unreasonably dangerous if it presents

an unreasonable risk of harm.” Pipkin, 383 S.W.3d at 671. The extent to which a

condition is unreasonably dangerous is ordinarily a fact question, but under some

facts and circumstances, may be determined as a matter of law. See id. “‘A condition

presenting an unreasonable risk of harm is one in which there is such a probability

of a harmful event occurring that a reasonably prudent person would have foreseen

it or some similar event as likely to happen.’” Reliable Consultants, Inc. v. Jaquez,

25 S.W.3d 336, 341 (Tex. App.—Austin 2000, pet. denied) (quoting Seideneck v.

Cal Bayreuther & Assocs., 451 S.W.2d 752, 754 (Tex. 1970)).

                                          12
      There is no definitive, objective test that may be applied to determine whether

a specific condition presents an unreasonable risk of harm. See Seideneck, 451

S.W.2d at 754. When determining whether the harmful event that resulted from a

condition was probable and foreseeable, courts often consider, among other things,

evidence of other falls or injuries attributable to the same condition and evidence of

some defective condition causing the fall; and, such evidence is probative but not

conclusive. See id. Courts may consider (1) whether the condition was clearly

marked, (2) the height of the condition, (3) whether injuries had occurred in the past,

(4) whether other invitees had complained about the condition, (5) whether the

condition was unusual, (6) whether the construction or placement of the condition

would serve as a warning that the object presented a prohibited degree of danger,

(7) whether the invitee had reasonable alternatives other than to go through the area

where the condition was located, and (8) whether the condition met applicable safety

standards. See Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 Tex. App. LEXIS

1217, at **8-10 (Tex. App.—Houston [14th Dist.] Feb. 4, 2014, no pet.) (mem. op.);

see also Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (holding

pedestrian ramp was not unreasonably dangerous because it was outlined in yellow

stripping, which was a common method to indicate elevation change); Dietz v. Hill

Country Rests., Inc., 398 S.W.3d 761, 767-68 (Tex. App.—San Antonio 2011, no

                                          13
pet.) (holding that summary judgment was proper because there was no evidence of

unreasonable risk of harm where condition—depressions in a sidewalk—had been

present for eighteen years with no prior falls or complaints); Farrar v. Sabine Mgmt.

Corp., 362 S.W.3d 694, 701 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(“Evidence of a similar injury or complaint caused by the condition is probative on

the question of whether the condition posed an unreasonable risk of harm.”).

                                      Analysis

      In this case, the only evidence on the condition of the broken concrete was

Valentine’s own affidavit wherein she described the concrete as “unstable[,]” “not

attached[,]” and “laying flush in the ground,” and her deposition testimony (with

photo exhibits) wherein she described the concrete as “shifting back and forth.” In

her affidavit, Valentine denied knowledge of any prior incidents or falls in the same

location.

      Valentine’s response to the Defendants’ motion for summary judgment failed

to present more than a scintilla of evidence about the condition to establish that it

was an unreasonably dangerous condition. Valentine produced no evidence about

how long the condition had existed, whether it had caused prior injuries or falls,

whether the condition was unusual, whether the condition presented a prohibited

degree of danger, whether Valentine had reasonable alternatives other than to go

                                         14
through the area where the condition was located, and whether the condition met

applicable safety standards. See Martin, 2014 Tex. App. LEXIS 1217, at **8-10. In

Cohen v. Landry’s Inc., for example, plaintiff Cohen alleged she was injured in a

trip-and-fall accident due to an uneven sidewalk. See 442 S.W.3d 818, 820 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied). In response to Landry’s no-evidence

motion for summary judgment, Cohen produced opinion testimony of an expert who

testified that Landry’s failure to mark the uneven sidewalk or provide lighting

increased the risk, the uneven sidewalk created a significant trip-and-fall hazard

because elevation differences are difficult to perceive, and the uneven sidewalk did

not meet applicable safety standards. Id. at 827-28. With respect to the premises

liability claim, the court of appeals reversed the trial court’s grant of summary

judgment and explained that Cohen had presented more than a scintilla of probative

evidence sufficient to raise a fact issue and overcome summary judgment on her

premises liability claim. Id. at 828; see also Hawk v. Paragon Inv. Corp., No. 07-

97-0097-CV, 1997 Tex. App. LEXIS 6466, at **5-6 (Tex. App.—Amarillo Dec. 16,

1997, no writ) (concluding that nonmovant’s uncontroverted expert witness’s

opinion raised a fact issue that precluded summary judgment on whether the bathtub

was unreasonably dangerous and whether Paragon should have known of the

unreasonably dangerous condition).

                                        15
      Unlike Cohen and Hawk, Valentine presented no expert testimony about the

condition, and she relied solely upon her own testimony about her fall and her own

perception of the condition of the concrete. The fact that Valentine fell does not itself

constitute evidence of an unreasonably dangerous condition. See Mangham v. YMCA

of Austin, 408 S.W.3d 923, 928 (Tex. App.—Austin 2013, no pet.); Bostick v. Metro

Nat’l Corp., No. 14-04-00663-CV, 2005 Tex. App. LEXIS 6584, at *10 (Tex.

App.—Houston [14th Dist.] Aug. 18, 2005, no pet.) (mem. op.) (concluding that

claimant failed to produce evidence to defeat no-evidence summary judgment and

rejecting inference that claimant’s injuries were caused by dangerous condition

merely because claimant fell). Valentine’s conclusory allegation that the broken

concrete was unreasonably dangerous is not sufficient to overcome the no-evidence

summary judgment. See Pipkin, 383 S.W.3d at 670 (“Conclusory affidavits are not

sufficient to raise fact issues because they are not credible or susceptible to being

readily controverted.) (citing Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)

(per curiam)).

      On this record, we conclude that Valentine failed to meet her burden in

response to the no-evidence motion for summary judgment. She failed to provide

more than a scintilla of evidence showing that the condition of the concrete was an

unreasonably dangerous condition, which was an essential element of her claim. See

                                           16
Daenen, 15 S.W.3d at 101. Accordingly, the trial court properly granted summary

judgment dismissing her claim on no-evidence grounds. See Tex. R. Civ. P. 166a(i);

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002) (quoting Rule

166a(i) that trial court must grant no-evidence motion unless nonmovant produces

summary judgment evidence that raises genuine issue of material fact on each

challenged element). Because Valentine presented no evidence that the condition of

the concrete was an unreasonably dangerous condition, we need not determine

whether she presented more than a scintilla of evidence on the other elements of her

claim. See Tex. R. App. P. 47.1. In addition, because Valentine failed to produce

more than a scintilla of evidence raising a genuine issue of material fact on the

challenged elements of her claims, we need not address whether traditional summary

judgment was proper. See Ridgway, 135 S.W.3d at 600. We also overrule

Valentine’s first issue—that “Defendants did not meet their burden, as a matter of

law, regarding unreasonable risk of harm and Defendants’ constructive knowledge

of the alleged dangerous condition[,]”—because in a no-evidence motion for

summary judgment, the burden is on the nonmovant-plaintiff to put forward

evidence on each element of her claim. See id.

      We overrule all of Appellant’s issues on appeal and affirm the trial court’s

judgment.

                                        17
      AFFIRMED.



                                              _________________________
                                                  LEANNE JOHNSON
                                                        Justice

Submitted on February 12, 2020
Opinion Delivered March 12, 2020

Before Kreger, Horton and Johnson, JJ.




                                         18
