          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                            NO. 03-02-00318-CV



             David Schreiner, Individually and as Next Friend of Thomas Schreiner,
                                      a Minor, Appellant

                                                       v.

          Lakeline Developers, A Texas General Partnership, and M.S. Management
                                 Associates, Inc., Appellees


      FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
         NO. 00-056-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                                MEMORANDUM OPINION


                 Appellant David Schreiner sued appellees Lakeline Developers and M.S. Management

Associates, Inc. (collectively, ALakeline@) after Schreiner=s son, Thomas, was injured while riding an

escalator at a mall owned by Lakeline. Lakeline filed a no-evidence motion for summary judgment, and the

trial court granted the motion. Schreiner appeals from the summary judgment, asserting that a genuine issue

of material fact exists as to each element of his cause of action. We will overrule his issue and affirm the trial

court=s judgment.


                                              BACKGROUND

                 On December 5, 1998, Thomas Schreiner, who was ten at the time, was riding a crowded

escalator to the second floor of the Lakeline mall. A live Christmas display and Christmas decorations were
on exhibit on the first floor of the mall, and Thomas rested his head on the moving escalator handrail to get a

better view of the display and decorations. As he reached the top of the escalator, Thomas=s head was

caught in a space between the moving escalator handrail and a stationary metal guardrail located near the

top of the escalator on the second floor. Thomas suffered a severe laceration to his scalp as a result of the

incident.

                 Thomas=s father sued Lakeline for negligently maintaining its premises. Lakeline moved for

a no-evidence summary judgment, which was initially denied. Lakeline then filed a motion to reconsider its

no-evidence motion for summary judgment. The trial court granted the motion to reconsider, and after

reconsidering the summary judgment motion, granted summary judgment in favor of Lakeline. Schreiner

appeals from the summary judgment.


                                              DISCUSSION

                 We review a no-evidence summary judgment under the same legal sufficiency standard used

to review a directed verdict. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.CAustin 1998,

no pet.). In other words, we must determine whether the evidence produced by the non-movant raises a

genuine fact issue on the material questions presented. Id. When analyzing no-evidence summary

judgments, we consider the evidence in the light most favorable to the non-movant; every reasonable

inference is indulged in favor of the non-movant, and all doubts are resolved in his favor. Id. Summary

judgment should be granted if the non-movant fails to bring forth more than a scintilla of probative evidence

on the material issues in question. Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 871

(Tex. App.CAustin 2001, no pet.). More than a scintilla of evidence exists if the evidence Arises to a level

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that would enable reasonable and fair-minded people to differ in their conclusions.@ Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Transportation Ins. Co. v. Moriel, 879

S.W.2d 10, 25 (Tex. 1994)).

                 It is undisputed that Schreiner was Lakeline=s invitee, see Rosas v. Buddies Food Store,

518 S.W.2d 534, 536 (Tex. 1975) (defining invitee as one who enters property of another Awith the

owner=s knowledge and for the mutual benefit of both@); accordingly, Lakeline owed Schreiner a duty to

exercise reasonable care to protect him from dangerous conditions on the property that created an

unreasonable risk of harm of which Lakeline knew or by the exercise of reasonable care should have

known. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); H.E. Butt Grocery Co. v.

Resendez, 988 S.W.2d 218, 219 (Tex. 1999). To defeat a no-evidence motion for summary judgment, a

plaintiff must raise a fact issue as to: (1) the premises owner=s actual or constructive knowledge of some

condition on the premises; (2) whether the condition posed an unreasonable risk of harm; (3) the premises

owner=s failure to exercise reasonable care to reduce or eliminate the risk; and (4) whether the 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). In its motion for summary judgment, Lakeline contended that Schreiner had no evidence

that Lakeline had actual or constructive knowledge of some condition on the premises, that the condition

posed an unreasonable risk of harm, or that Lakeline failed to exercise reasonable care to reduce or

eliminate the risk.

                 The existence of actual or constructive knowledge of a dangerous condition is a threshold

requirement for a premises defect claim. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A


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condition presents an unreasonable risk of harm if 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. Rosas,

518 S.W.2d at 537; Seidenick v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970).

Accordingly, a land owner can be charged with knowledge and appreciation of an unreasonably dangerous

condition on his premises only if from a reasonable inspection a reasonably prudent person should have

foreseen a probability that the condition would result in injury to another. Seidenick, 451 S.W.2d at 754.

While there is no bright line test that may be applied to resolve the issue, evidence of other incidents

attributable to the same defect or condition is probative, although not conclusive. Seidenick, 451 S.W.2d

at 754; see also Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.CAustin 2000,

pet. denied). Similarly, evidence of the defectiveness of the condition causing the injury is probative.

Seidenick, 451 S.W.2d at 754.

                In this case, Schreiner argues that the stationary guardrail on the second floor Awas

constructed in such a way that it protrudes toward a moving escalator rail, creating a space where a person

would be injured if caught.@ He directs us to photos provided in response to the summary judgment motion,

demonstrating the position of the escalator and the stationary guardrail on the second floor. He also

provided the deposition testimony of Thomas, in which he described the Christmas display on the first level

of the mall and how crowded the escalator was when he was on it. Schreiner further argues that the

existence of placards placed near the escalators instructing mall patrons on the appropriate use of escalators

demonstrates that Lakeline had constructive knowledge of the unreasonably dangerous condition created by

the position of the stationary guardrail and the escalator handrail.


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                Schreiner presented no expert testimony; only factual lay testimony was offered. Further,

Schreiner provided no evidence that anyone had previously been injured by the arrangement of the

stationary guardrail and the escalator. There is no evidence that the construction of the stationary guardrail

or the escalator was somehow defective or unusual. Schreiner did not present evidence that the position of

the stationary guardrail and the moving escalator handrail was inherently dangerous or hazardously situated.

There is no evidence that the construction of the stationary guardrail in relation to the escalator handrail was

not in compliance with applicable standards, or that the particular construction and placement of the

stationary guardrail and escalator handrail would have served as a suggestion or warning to Lakeline that

they presented the prohibited degree of danger, even if Lakeline had attempted an inspection for dangerous

conditions. And it is well settled that the mere fact that an accident occurred is no evidence that there was

an unreasonable risk of such an occurrence. Dabney v. Wexler-McCoy, Inc., 953 S.W.2d 533, 537 (Tex.

App.CTexarkana 1997, pet. denied) (citing Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1968)).

                The duty of a premises owner to an invitee is not that of an insurer; nor is a premises owner

strictly liable for conditions that result in injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.

2000). The fact that Thomas was injured by the stationary guardrail while riding on the escalator with his

head resting on the moving escalator handrail is evidence only that he was injured by the stationary guardrail

while riding on the escalator. These unusual circumstances presented by Schreiner, however, are no

evidence of an unreasonably dangerous condition that a reasonably prudent person should have foreseen

would result in injury. And although the placards may constitute some evidence that Lakeline was aware of

the inherent risks of riding an escalator, they provide no evidence that Lakeline knew or should have known


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of the condition that Schreiner asserts caused his son=s injuries, that is, the position of the stationary guardrail

in relation to the escalator. Accordingly, we overrule Schreiner=s issue.


                                                CONCLUSION

                 Because we conclude that Schreiner failed to bring forth more than a scintilla of evidence

raising a genuine fact issue as to the material elements of his claim, we overrule his sole issue on appeal and

affirm the trial court=s summary judgment.




                                                     Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: February 21, 2003




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