                             NO. 12-09-00219-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                  TYLER, TEXAS
DOLORES AND RONALD BOWMAN,
APPELLANTS                                       '   APPEAL FROM THE 7TH

V.                                               '   JUDICIAL DISTRICT COURT OF

BROOKSHIRE GROCERY COMPANY,                      '   SMITH COUNTY, TEXAS
APPELLEE
                                           OPINION
       Dolores Bowman and her husband, Ronald Bowman, appeal the trial court’s grant of
Appellee Brookshire Grocery Company’s no evidence and traditional motions for summary
judgment. In two issues, the Bowmans argue that the trial court erroneously granted the motions.
We affirm.


                                         BACKGROUND
       Dolores was grocery shopping at the Brookshire store in Bullard, Texas. As she exited
the store, she tripped on a floor mat placed near the exit and fell. As a result of her fall, she
shattered bones in her upper arm and shoulder.
       The Bowmans brought a premises liability suit against Brookshire alleging that the use,
condition, and manner of maintenance of the mat utilized by Brookshire constituted an
unreasonably dangerous condition, the existence of which was known to Brookshire, or in the
exercise of ordinary care should have been known to it. The Bowmans further maintained that
this unreasonably dangerous condition resulted in a tripping hazard to Dolores and others
similarly situated.   The Bowmans also pleaded causes of action for negligence and gross
negligence.
        After an adequate time for discovery, Brookshire filed no evidence and traditional
motions for summary judgment. In its no evidence motion, Brookshire contended that the
Bowmans could present no evidence to support that (1) it had actual or constructive knowledge
of some condition on the premises; (2) the condition caused an unreasonable risk of harm to
Dolores; (3) it breached its duty of ordinary care by both failing to adequately warn Dolores of
the condition and failing to make the condition reasonably safe; (4) Brookshire’s breach
proximately caused Dolores’s injuries; (5) Brookshire owed Dolores a duty, (6) Brookshire
breached any duty owed to Dolores, (7) any breach of duty by Brookshire proximately caused
Dolores’s injury, and (8) either the objective or subjective tests of gross negligence were
satisfied.
        The Bowmans filed a response to Brookshire’s motions. As part of their response, the
Bowmans incorporated Dolores’s affidavit, in which she stated, “a ruffled edge of the mat caught
my foot and caused me to fall.” The Bowmans further supported their response with the
deposition testimony of Brookshire’s designated representative, Jerry Nick. Nick testified that
the purpose of floor mats was to gather dirt and water so that these items were not tracked
throughout the store. The Bowmans further supported their response with “injury incident”
reports documenting one hundred eighteen injuries involving similar floor mats in seventy-five
other Brookshire stores in multiple states over a span of four years.
        The deposition testimony given by Brookshire’s corporate representative, Tony Johnson,
was also incorporated into the Bowmans’ response. Johnson’s testimony indicated that the
Bullard store had been operating for five years and that there had been no previous injuries
related to the store’s floor mats. Johnson’s testimony further indicated that once or twice a
month, someone would tell him that a floor mat was not lying flush with the floor. According to
Johnson, Brookshire employees would respond to this information by remedying the situation
immediately. Moreover, Seth Goodlet, the Brookshire courtesy clerk who was assisting Dolores
at the time of the incident, testified in his deposition that he was trained to immediately place the
mat flush with the floor when he observed this problem or a customer brought this type of
problem to his attention.
        Ultimately, the trial court granted both Brookshire’s no evidence and traditional motions
for summary judgment. The Bowmans timely filed this appeal.
                                     STANDARD OF REVIEW
       Because the grant of a summary judgment is a question of law, we review the trial court’s
summary judgment decision de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). A no evidence motion for summary judgment must be granted if, after an adequate
time for discovery, (1) the moving party asserts that there is no evidence of one or more essential
elements of a claim or defense on which the adverse party would have the burden of proof at trial
and (2) the respondent produces no summary judgment evidence raising a genuine issue of
material fact on those elements. See TEX. R. CIV. P. 166(a)(i); Priddy v. Rawson, 282 S.W.3d
588, 593 (Tex. App.–Houston [14th Dist.] 2009, pet. denied). A genuine issue of material fact
exists if more than a scintilla of evidence establishing the existence of the challenged element is
produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Less than a scintilla
of evidence exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). 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. Id.
       To be entitled to traditional summary judgment, a defendant must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or conclusively establish
each element of an affirmative defense. Priddy v. Rawson, 282 S.W.3d at 592. When reviewing
a summary judgment, we “must examine the entire record in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts against the motion.”
City of Keller v. Wilson, 168 S.W.3d 802, 824–25 (Tex. 2005). When a trial court’s order
granting summary judgment does not specify the ground or grounds relied on for the ruling,
summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.
State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). When, as here, the trial
court granted both the no evidence and traditional motions for summary judgment, we first
review the grant of the no evidence summary judgment. Ridgway, 135 S.W.3d at 600.


                                      PREMISES LIABILITY
       In their first issue, the Bowmans contend that they presented more than a scintilla of
probative evidence to raise genuine issues of material fact on each of the grounds identified by
Brookshire in its no evidence motion for summary judgment.
Applicable Law
       Dolores was Brookshire’s invitee. See Rosas v. Buddies Food Store, 518 S.W.2d 534,
536 (Tex. 1975) (invitee is person who enters premises with possessor’s express or implied
knowledge and for parties’ mutual benefit). As such, Brookshire owed her a duty to exercise
reasonable care to protect her from dangerous conditions in the store known or discoverable to it.
See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d. 934, 936 (Tex. 1998). The duty a premises
owner owes to its invitees is not that of an insurer. Brinson Ford, Inc. v. Alger, 228 S.W.3d
161, 162 (Tex. 2007). In other words, the condition is not unreasonably dangerous simply
because it is not foolproof. See id. at 163.
       To recover damages in a premises liability case, a plaintiff must prove the following: (1)
the owner/operator had actual or constructive knowledge of some condition on the premises; (2)
the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise
reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use
reasonable care proximately caused the plaintiff’s injuries. See Gonzalez, 968 S.W.3d at 936.
An invitee’s suit against a store owner is a simple negligence action. Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292, 295 (Tex. 1983). A store owner’s duty is to exercise reasonable care to
protect against danger from a condition on the land or premises that creates an unreasonable risk
of harm of which the owner or occupier knew or by the exercise of reasonable care could
discover. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The crux of this
duty depends on actual or constructive knowledge of a dangerous condition that a reasonable
inspection would reveal. See id.
       In premises liability cases, there is no single test for determining actual knowledge that a
condition presents an unreasonable risk of harm. See Univ. of Tex.–Pan Am. v. Aguilar, 251
S.W.3d 511, 513 (Tex. 2008). Courts generally consider whether the premises owner has
received reports of prior injuries or reports of the potential danger presented by the condition.
See id. Alternatively, constructive knowledge can be established by a showing that the condition
had existed long enough for the owner or occupier to have discovered it upon reasonable
inspection. See Daenen, 15 S.W.3d at 101.
Knowledge of Dangerous Condition of Floor Mat
       In her affidavit filed in response to Brookshire’s no evidence motion, Dolores stated,
“When I reached the floor mat in the entry/exit area of the store, a ruffled edge of the mat caught
my foot and caused me to fall.” This “ruffled” floor mat is the Bowmans’ only allegation of an
unreasonably dangerous condition.
          Dangerous Condition
          Before we consider whether the Bowmans brought forth evidence that Brookshire had
knowledge of a dangerous condition, we must determine what, if anything, of record amounted
to a dangerous condition. The Texas Supreme has held that a grocery store’s self-service display
of loose grapes in a recessed bowl on a rimmed table standing on a nonskid floor and surrounded
by mats and warning cones is not an unreasonably dangerous condition; rather, the grape on
which the plaintiff slipped was the dangerous condition. See Taylor, 222 S.W.3d at 408 (citing
H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218–19 (Tex. 1999)). Analogizing the
facts of Taylor and Resendez to those in the instant case, we conclude that the floor mat itself
does not amount to the condition that poses an unreasonable risk of harm. Rather, it is the
condition of the floor mat, i.e., the “ruffled” edges, that created the unreasonable risk of harm.
See id.
          Actual Knowledge
          The Bowmans contend that they raised summary judgment evidence supporting that
Brookshire had actual knowledge that the floor mat posed an unreasonable risk of harm.
Specifically, the Bowmans note that the summary judgment evidence contains one hundred
eighteen “injury incident” reports at seventy-five other Brookshire stores in multiple states over a
four year period and that these reports indicate that the injuries were caused by floor mats. Thus,
the Bowmans argue that the store owner may be liable if the invitee can show the store owner
was aware of a high risk that the dangerous condition would occur. See Crosby v. Minyard
Food Stores, Inc., 122 S.W.3d 899, 901 (Tex. App.–Dallas 2003, no pet.) (citing Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)).
          In Crosby, the plaintiff submitted Minyard incident reports indicating that several people
had tripped and fallen on the floor mat at the entry of the grocery store in the weeks preceding
her injury. Id. at 901. The Dallas court of appeals determined that this evidence was sufficient
to allow the issue of Minyard’s negligence to be presented to the jury. Id. at 902. The Bowmans
further cite Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex. 1970), in support of
their contention that the absence of evidence of prior similar incidents is probative in a trip and
fall case. Id. at 754.1
        In our review of these two cases, we notice an important detail present in each case that
the Bowmans have overlooked. In Crosby, the incident occurred at the same store rather than at
other stores in the Minyard Food Store chain. See Crosby, 122 S.W.3d at 901–02. Similarly,
Seideneck did not involve a chain of stores. See Seideneck, 451 S.W.2d at 753–55. Through
our research, we have found no case from our supreme court supporting the proposition that
tripping over a floor mat or slipping on a floor in a different store of a retail chain constitutes
actual knowledge of a condition creating an unreasonable risk of harm for other stores in that
retail chain. We decline to so extend the concept of actual knowledge.
        Here, the summary judgment evidence indicates that there had been no reported injuries
regarding floor mats in Brookshire’s Bullard store. Neither was there evidence that the floor
mats in the Bullard store remained in a dangerous condition after such a condition was brought to
the attention of the store by its employees. We conclude that a floor mat condition in another
Brookshire store does not establish actual knowledge of a dangerous condition related to the
floor mat in the Bullard store. Consequently, we hold that there is no evidence in the summary
judgment record that the employees in the Brookshire store in Bullard had actual knowledge of a
dangerous condition related to the floor mat.
        Constructive Knowledge
        Shifting our analysis to evidence supporting Brookshire’s constructive knowledge of a
dangerous condition, we note that the Bowmans failed to provide any evidence that Brookshire
knew of the mat’s “ruffled” edges and had failed to take action. Further, there is no evidence
that the “ruffled” edges of the mat had existed long enough for Brookshire to have discovered it
upon reasonable inspection. See, e.g., Taylor, 222 S.W.3d at 409 (no evidence that condition
existed long enough for premises owner to have constructive notice). Indeed, in their brief, the
Bowmans virtually concede that Brookshire did not have constructive notice when they state that
“[t]he issue is not, as argued by defendant, whether the defendant knew of the specific bump or
ruffle in the particular mat which caught the plaintiff’s foot and thereby triggered her fall.”
Thus, we hold that there is no evidence in the summary judgment record supporting that
Brookshire had constructive knowledge of the condition that caused Dolores’s injuries. See id.

        1
          Presumably, the Bowmans seek to harmonize the court’s holding in Seideneck with the Dallas court of
appeals’ holding in Crosby that the presence of evidence of prior similar incidents is probative. See Crosby, 122
S.W.3d at 901.
Negligence and Gross Negligence
         The Bowmans pleaded the theories of negligence and gross negligence in their petition.
However, they failed to present any form of argument or cite any authority in their appellate
brief to support these theories of recovery. We hold that the Bowmans have waived their
arguments on these two theories of recovery by their failure to adequately brief them. See TEX.
R. APP. P. 38.1(i); Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex. App.–Dallas
1999, no pet.).
Summation
         Based on our review of the summary judgment evidence, we have held that the Bowmans
failed to bring forth more than a scintilla of evidence in response to Brookshire’s no evidence
motion for summary judgment regarding the challenged element of knowledge of the dangerous
condition. Furthermore, the Bowmans failed to adequately brief whether the trial court properly
granted Brookshire’s no evidence motion for summary judgment with regard to their claims of
negligence and gross negligence and have, therefore, waived any issue on appeal regarding those
claims. Accordingly, we hold that the trial court did not err in granting Brookshire’s no evidence
motion for summary judgment. The Bowmans’ first issue is overruled.2

                                                    DISPOSITION
         Having overruled the Bowmans’ first issue, we affirm the trial court’s judgment.


                                                                       JAMES T. WORTHEN
                                                                           Chief Justice


Opinion delivered June 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         2
          Because our overruling of the Bowmans’ first issue is dispositive of the matter, we need not address their
second issue pertaining to the propriety of the trial court’s granting Brookshire’s traditional motion for summary
judgment.
