                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                    No. 07-18-00333-CV
                                ________________________


                               DANA DANIELS, APPELLANT

                                               V.

                  ALLSUP’S CONVENIENCE STORES, INC., APPELLEE



                           On Appeal from the 223rd District Court
                                     Gray County, Texas
              Trial Court No. 37,775; Honorable Philip N. Vanderpool, Presiding


                                        March 26, 2020

                                          OPINION
                      Before QUINN, CJ., and PIRTLE and PARKER, JJ.


       Appellant, Dana Daniels, appeals from an Order of Dismissal entered following a

directed verdict granted in favor of Appellee, Allsup’s Convenience Stores, Inc.

(“Allsup’s”), following a jury trial, in his premises liability suit. On appeal, Daniels contends

that the trial court erred by directing a verdict in favor of Allsup’s and dismissing his suit

when there was more than a scintilla of evidence at trial, raising a question of fact,
concerning whether Allsup’s had actual or constructive knowledge of an unreasonably

dangerous condition on its premises (a loose facia board on its store awning, suspended

precariously over a pedestrian walkway) yet failed to protect Daniels, an invitee. We

reverse the trial court’s Order of Dismissal and remand this cause for a trial on the merits.


       FACTUAL BACKGROUND

       In August 2015, Daniels filed his First Amended Original Petition alleging that in

April 2014, he exited an Allsup’s convenience store through the front doors after making

several purchases and was suddenly struck by a plywood facia board that had come

loose from a storefront awning. Daniels alleged that Allsup’s knew or should have known

that the defective condition of the premises created an unreasonable risk of harm to its

customers and by failing to properly inspect the awning for latent defects, warn its

customers of the existing defect, protect its customers from the risk presented by some

type of barrier, or repair the defective condition, Allsup’s breached a duty of ordinary care

that it owed to its invitees. In August 2018, a two-day jury trial was held, and the following

evidence was presented in Daniels’s case-in-chief.


       LaTisha Velasquez, Allsup’s store manager trainee, testified that on April 13, 2014,

the store experienced high winds with gusts of up to sixty miles per hour. While she was

off-duty, she received a call from one of her employees who informed her that the store’s

awning was flapping. When she arrived at the store, she inspected the awning from the

ground and noticed that a section of the facia board had come loose. She thought the

condition of the awning and the flapping of the facia board was significant enough to call

Michael Schale, her area manager. She reported to him that the defective condition of

the awning should be repaired as soon as possible.

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       Velasquez also testified that when she made her inspection, she did so from the

ground and did not climb a ladder to inspect the roofing materials behind the facia board.

Her inspection was the first time she had noticed the facia board coming loose. She had

never experienced a piece of plywood sheathing coming loose and falling.               After

inspecting the awning, she continued to perform her regular duties. She did not work the

day of Daniels’s injuries.


       Evan Merrell, an Allsup’s employee, was working behind the counter at the cash

register when the plywood facia board fell and hit Daniels. He testified that Daniels

entered the store and purchased a lottery ticket. After exiting the store, Daniels re-entered

and bought a second lottery ticket. When Daniels exited the store a second time, Merrell

heard a loud boom, glanced out the door, and saw Daniels lying flat on the ground with

the plywood facia board atop his body. He immediately called 911 and the area manager.

Prior to the plywood facia board falling on Daniels, Merrell had never seen anything

hanging from the awning or a section of awning fall from the roof.


       Schale, Allsup’s area manager, testified the weather the day before Daniels was

injured included sideways rain and heavy winds. According to his account, the storm was

not typical for weather in the Panhandle and was of the type of wind that could cause

damage to structures. In fact, he doubted that anyone would even be driving in the storm

because the wind was so great and the rain was blowing sideways. That evening, he

received a call from an employee at the Allsup’s store in question, who informed him that

a piece of “awning” was flapping. He then spoke to a second employee who had been

employed by the store for a longer period of time and asked her about the flapping. She



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responded that he need not be concerned. He asked her if he needed to rope anything

off and the second employee replied “[n]o, it’s just flapping in the wind.”


       The next morning, Schale arrived at the store two hours early, around 6:30 a.m.,

to make sure something unusual had not occurred during the storm. He did not get a

ladder to inspect the awning because the wind was still blowing, and the store’s ladder

would not reach that high. He stood underneath the awning and looked up. He saw a

twelve-inch-by-eighteen-inch portion of the facia board flapping. At that time, he was not

concerned for the safety of his employees or customers and saw no need to rope off the

section or to immediately call maintenance. In his twenty years with Allsup’s, he had

never seen an incident where an entire section of facia board had broken loose and fallen

to the ground. Typically, the storefront awnings only suffered hail damage or flapped after

high winds.


       Allsup’s normal procedure in such an instance was to call maintenance, who would

then inspect the awning and make an evaluation. Only if the decorative plastic tiles were

loose, would he tack them to the plywood underlayment. If the work was going to be

more extensive than that, he would call a professional sign company.             Because

maintenance was already scheduled to be at that particular store around noon that same

day, Schale did not make a call for immediate maintenance but instead left word at the

store to have the maintenance man call him when he arrived.




                                             4
        Between 11:00 a.m. and 12:00 p.m., the maintenance man arrived at the store as

scheduled. Schale was away from the store at the time. Before the maintenance man

could commence his duties, the plywood facia board fell, striking Daniels. When it fell,

Schale received a call from the store informing

him that a four-foot-by-eight-foot section of

plywood facia had fallen to the ground and

injured a customer.        Schale testified that the

plywood fell “due to high winds and weather.”

After the incident, a professional sign company

was called to make the necessary repairs.                   Allsup’s Convenience Store showing repaired facia board.



        Daniels testified that on the day of the incident, he purchased gas and lottery

tickets at Allsup’s.1 When he entered the store, he observed no warning signs or cones

in front of the store and no area had been cordoned off to prevent pedestrians from

walking under the loose facia board. The last thing he remembered was scratching a

lottery ticket before everything became a blur. Daniels’s testimony concluded his case-

in-chief.


        Thereafter, Allsup’s moved for a directed verdict asserting Daniels had not

presented any evidence that, prior to the incident, Allsup’s had actual or constructive

notice that the flapping facia board presented an unreasonably dangerous condition.

After hearing legal arguments, the trial court granted a directed verdict in favor of Allsup’s.

An Order of Dismissal was subsequently entered by the trial court reflecting that the


       Prior to his testimony before the jury, he testified outside the jury’s presence on issues related to
        1

damages.
directed verdict was granted on “grounds that [Daniels] failed to prove, as a matter of law,

any negligence on the part of [Allsup’s].”


       STANDARD OF REVIEW

       When reviewing a judgment or order granting a directed verdict in favor of the

defendant, the proper standard of review an appellate court should apply is the same

standard it would apply in reviewing a judgment granting a defensive motion for summary

judgment.    Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978).           That standard, as

generally stated, is that a defendant is entitled to a directed verdict when reasonable

minds could draw only one conclusion from the evidence and there has been established,

as a matter of law, either (1) an affirmative defense or (2) at least one essential element

of the plaintiff’s cause of action has been negated. In our review of the directed verdict

rendered in this case, our task, as an appellate court, is to determine whether there is

any evidence of probative force sufficient to raise a fact issue on the material questions

presented. Id. As a reviewing court, we must consider all of the evidence in the light

most favorable to the party against whom the verdict was instructed (Daniels), discarding

all contrary evidence and inferences. Id. (citing Henderson v. Travelers Ins. Co., 544

S.W.2d 649 (Tex.1976); Echols v. Wells, 510 S.W.2d 916 (Tex.1974)). Should we find

that reasonable minds could differ as to the truth of controlling facts, an issue of fact

exists, and that issue must go to the jury. Id. (citing Najera v. Great Atlantic & Pacific Tea

Co., 146 Tex. 367, 207 S.W.2d 365 (1948)).


       PREMISES LIABILITY

       Unlike a negligent activity claim, a premises liability claim is based on the principle

that the property controlled by the tortfeasor is unreasonably unsafe. Premises liability

                                              6
is, therefore, a special form of negligence in which the duty owed to the injured party

depends on that party’s status on the premises at the time of the incident. Scott & White

Memorial Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010). Generally, a premises owner

or occupier, such as Allsup’s, owes a duty to keep its premises safe for invitees,2 such as

Daniels, against any condition on the premises that poses an unreasonable risk of harm.

Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007). “The duty owed by an

owner or occupier of premises to an invitee is not that of an insurer.” CMH Homes, Inc.

v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). To impose liability on the owner or occupier

of the premises, the claimant must establish that, at the time of the incident, the owner or

occupier knew of the dangerous condition or, in the exercise of reasonable care, should

have known of the condition of the premises. Henkel v. Norman, 441 S.W.3d 249, 251

(Tex. 2014); Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).


        An owner’s or occupier’s knowledge of a dangerous condition can be actual or

constructive.     Henkel, 441 S.W.3d at 251.             Actual knowledge is knowledge “of the

dangerous condition at the time of the incident, not merely the possibility that a dangerous

condition could develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 413-

14 (Tex. 2008) (per curiam). “Constructive knowledge is a substitute in the law for actual

knowledge.”       CMH Homes, Inc., 15 S.W.3d at 102.                    In premises liability cases,

constructive knowledge can be established by showing that the dangerous condition had

existed long enough for the owner or occupier to have discovered it upon reasonable

inspection. Id. “The rule requiring proof that a dangerous condition existed for some


        2
          “An invitee enters land with the owner’s knowledge and for the mutual benefit of both.” Wilson v.
Northwest Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 850 (Tex. App.—Amarillo 2019, no pet.). Here, it
is undisputed that Daniels was an invitee.

                                                    7
length of time before a premises owner may be charged with constructive notice is firmly

rooted in our jurisprudence.” Wal-Mart Stores v. Reece, 81 S.W.3d 812, 815 (Tex. 2002).

This so-called “time-notice rule” is not limited to slip-and-fall cases and “is based on the

premise that temporal evidence best indicates whether the owner had a reasonable

opportunity to discover and remedy a dangerous condition.” Id. at 816. Thus, in applying

this “time-notice rule,” courts have analyzed “the combination of proximity, conspicuity,

and longevity.” Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567-68 (Tex. 2006)

(citing Reece, 81 S.W.3d at 816-17).


        Several courts, including the Texas Supreme Court and this court, have identified

the essential elements of a premises liability cause of action to include the following: (1)

the claimant was an invitee, (2) the defendant was a possessor of the premises, (3) a

condition on the premises posed an unreasonable risk of harm, (4) the defendant knew

or reasonably should have known about the condition, (5) the defendant breached its duty

of ordinary care by either (a) failing to make the condition reasonably safe (eliminate the

risk) or (b) failing to adequately warn of the premise defect (reduce the risk), and (6) the

defendant's breach proximately caused the claimant’s injuries. See Henkel, 441 S.W.3d

at 251-52 (citing CMH Homes, Inc., 15 S.W.3d at 99); Raines v. Hale, No. 17-17-00288-

CV, 2018 Tex. App. LEXIS 2232, at *6 (Tex. App.—Amarillo Mar. 28, 2018, no pet.) (mem.

op.).


        ANALYSIS

        Testimony at trial established that wind gusts the night before the incident were

upwards of sixty miles an hour, and they were the type of winds that reasonably could

have caused damage to the exterior of a building. In fact, the weather that evening was

                                             8
so severe Schale doubted if anyone would be out driving because the rain was blowing

sideways. Nevertheless, after receiving a call that someone saw or heard the store’s

“awning” flapping, Velasquez, Allsup’s manager trainee, made an unscheduled visit to the

store for the express purpose of inspecting the source of this concern. When she arrived

at the store, she visually inspected the awning from the ground because she could not

have physically reached the awning, even if she had used the store ladder. She further

testified that the damage to the awning was “significant” and she immediately reported it

to Schale, Allsup’s area manager. She also told Schale that the awning should be

repaired as soon as possible.


       Schale testified that, whenever an awning was damaged, Allsup’s general

procedure was to call maintenance to make the necessary repairs. If the repair was

extensive and required more than simply tacking down the decorative tiles, then the

procedure was to call a sign company to make any significant repairs. When Schale

received a second call from another employee reporting that the same awning was

flapping, he opted not to immediately call the maintenance man because a third employee

had reported that he was not concerned about the flapping. At that point, Schale decided

to wait until the next day when the maintenance man was regularly scheduled to visit the

store in question.


       The peak times at the store were between 6:30 a.m. and 8:00 a.m. Therefore, the

next morning, Schale arrived at the store around 6:30 a.m., specifically for the purpose of

inspecting the awning and determining if the storm had caused any unusual damage that

necessitated immediate repairs. He too did not use a ladder to inspect the awning. From



                                            9
the ground, he noted that nothing appeared out of the ordinary and he opted not to call

the maintenance man a third time.


       Around noon, the maintenance man arrived, went to the back of the store, and had

coffee before commencing work. Shortly thereafter, an entire section of the plywood facia

fell from the awning, striking Daniels as he walked from the store. After Daniels was taken

to the hospital, the maintenance man determined that the damage to the awning was

substantial enough to require that a sign company be brought in to undertake the repairs.


       On appeal, no one contests whether Daniels was an invitee or whether Allsup’s

was the owner or occupier of the premises where Daniels sustained personal injuries as

a direct result of the plywood facia board falling and striking him. While Allsup’s does not

dispute the fact that it knew about the defective condition of the premises prior to the

incident, Allsup’s contends it did not know “that a section of plywood had broken loose

from the roof.” In making this argument, what Allsup’s really contests is whether it had

actual or constructive knowledge that the condition itself presented an unreasonable risk

of harm. Allsup’s knew something was wrong with its awning. It just contends it was not

aware that the condition of the awning presented a danger to its customers—or at least it

was willing to take that risk. By not warning customers that something was wrong with

the way the awning was attached to the building or by not roping off the area in which

someone could be hit by falling debris, Allsup’s was effectively saying that it did not have

a problem exposing its customers to whatever danger was present. By moving for a

directed verdict, Allsup’s contended that Daniels failed to present more than a scintilla of

evidence raising a question of fact concerning whether the physical condition of the

premises (which Allsup’s was clearly aware of through its agents and employees)

                                            10
presented an unreasonable risk of harm to its invitees.         Whether a given condition

presents an “unreasonable risk of harm” is inherently a fact question and Allsup’s certainly

did not establish, as a matter of law, that it was not unreasonably dangerous. Daniels

presented evidence that the condition of the premises was such that Allsup’s allowed a

sheet of plywood facia board to break loose from its mooring and strike him. The mere

fact that Daniels was injured as a result of the condition of the premises is itself some

evidence that the condition of the premises presented some risk of harm.


       This is not a slip-and-fall case where the property owner might avoid responsibility

for a dangerous condition by saying it was unaware that a dangerous condition existed

on its property. Here, Allsup’s was aware of the condition—its employees knew, its store

manager knew, its area manager knew, and maintenance knew. Yet, even with all of this

knowledge, Allsup’s did not take any steps to reduce the risk of harm to invitees by

repairing or replacing the defective facia board, nor did it take any steps to reduce the risk

of harm to its invitees by providing an adequate written or verbal warning or by

constructing any type of barrier that would prevent an invitee from walking inside the zone

of danger.


       Viewing the evidence in a light most favorable to Daniels’s premises liability claim,

while Allsup’s may contend that the danger presented by this particular condition was not

unreasonably dangerous, it cannot deny the fact that it had notice of the condition.

Accordingly, this is not a situation in which the “time-notice rule” would have any

application. Allsup’s was on notice of the condition of its premises, yet it did nothing to

reasonably protect the public until it could determine the extent of the danger presented.

Furthermore, should Allsup’s rebuttal be that it did not know the condition was dangerous

                                             11
to the public, the evidence shows otherwise—thereby raising a material fact issue.

Because a reasonable juror could find a loose piece of plywood facia board,

approximately four-feet-by-eight-feet, exposed to the elements (especially wind, which

was described as “high” when the awning was inspected by both Schale and Velasquez),

suspended several feet above an area where pedestrians routinely walk (directly in front

of the front door to the business), presents some risk of harm to an invitee on the

premises, we find that there was some evidence that the condition of the premises

presented an unreasonable risk of harm to Allsup’s invitees and that Allsup’s was aware

of that risk.   Furthermore, notwithstanding its awareness of that risk of harm to its

customers, Allsup’s failed to warn or protect its invitees in a reasonable manner. It posted

no signs, erected no barriers, placed no warning cones, or otherwise restricted public

access to the danger zone presented. Because there was more than a scintilla of

evidence raising a fact issue concerning whether Allsup’s had actual or constructive

knowledge of an unreasonably dangerous condition on its premises, yet failed to warn or

protect Daniels, an invitee, the trial court erred in granting a directed verdict. Accordingly,

we sustain Daniels’s single issue.


       CONCLUSION

       We reverse the trial court’s Order of Dismissal and remand this cause to the trial

court for a trial on the merits.




                                                          Patrick A. Pirtle
                                                              Justice




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