Reversed and Remanded and Majority and Dissenting Opinions filed July 30,
2013.




                                         In The

                     Fourteenth Court of Appeals

                                NO. 14-12-00995-CV

                     CHRISTOPHER NORMAN, Appellant,

                                          V.

         CHRISTOPHER HENKEL AND LISA HENKEL, Appellees.

              On Appeal from the County Civil Court at Law No. 1
                               Harris County
                       Trial Court Cause No. 1005041

                     DISSENTING OPINION

      Because Lisa Henkel gave Christopher Norman an adequate warning as a
matter of law, I respectfully dissent.

      I do not believe the cases Norman cites to support his argument control in
this case. See, e.g., TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex.
2009); State v. McBride, 601 S.W.2d 552, 557 (Tex. Civ. App.—Waco 1980, writ
ref’d n.r.e.). Unlike the too-general warnings in Perry and McBride, Lisa’s
warning specifically informed Norman of the particular hazard—the slippery
ground. In this case, “don’t slip” is necessarily a warning of slippery conditions.
And although Lisa did not specify the exact area of the sidewalk that was
potentially dangerous, her warning conveyed that the slippery conditions were on
the ground. Norman emphasizes the fact that her warning did not specify that ice
was the cause of the potentially dangerous condition. But I disagree that a warning
of the slippery conditions was inadequate without details of the specific cause of
those conditions.
      Moreover, a reasonably prudent person in Norman’s position would have
understood Lisa’s warning to relate to ice as the cause of the slippery conditions.
The summary-judgment evidence conclusively establishes that temperatures were
below freezing on the day Norman fell. In the appendix to his response to the
Henkels’ motion for summary judgment, Norman himself included a news article
about the National Weather Service’s hard-freeze warning for the Houston area
that day.
      The majority states that “Texas Supreme Court authority has never
supported such a general definition of ‘the condition,’” citing Brookshire Grocery
Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006), Corbin v. Safeway Stores, Inc., 648
S.W.2d 292 (Tex. 1983), and Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex.
1976). Yet in none of those cases does the court discuss the adequacy of a warning
because in none of those cases was there any warning at all. Instead, in each case
the court considers whether there was an unreasonably dangerous condition and, if
so, whether the defendant had notice of it. And although the court identifies the
specific item that caused the floor to be slippery in each case, the court does not
indicate that “the condition” at issue was the specific item on the floor rather than
the slippery floor generally. Because those cases neither show support for a narrow
definition nor reject a broader one, I do not believe they support the majority’s
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conclusion. See Taylor, 222 S.W.3d at 407–09; Corbin, 648 S.W.2d at 294; Coffee,
536 S.W.2d at 541.

      A closer analogy to this case is Bill’s Dollar Store, Inc. v. Bean, in which we
held that a cashier’s warning to a customer “to watch the wet spot as she walked
out the door” was adequate as a matter of law. 77 S.W.3d 367, 371 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied). In that case, the floor was dangerous
because it was wet; it mattered not whether the wetness was caused by a
customer’s spilled soft drink, by water left from mopping, or by rain customers’
shoes carried in from outside. The same is true here—the walkway was dangerous
because it was slippery, and Lisa’s warning was not inadequate simply because she
failed to identify the specific substance that caused the slipperiness.

      Finally, I disagree with the majority’s assertion that if we conclude Lisa’s
warning was adequate, “every owner or occupier of land may post a sign ‘Don’t
slip’ at the entrance of the premises and discharge its duty of all slipping
conditions on or within the premises as a matter of law.” The question of adequacy
turns on what was reasonably prudent under the circumstances. See TXI
Operations, 278 S.W.3d at 764–65. And under the particular circumstances of this
case, Lisa’s warning was adequate as a matter of law.




                                        /s/       Jeffrey V. Brown
                                                  Justice

Panel consists of Justices Brown, Christopher, and McCally.               (McCally, J.,
Majority).




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