


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-02-00053-CV
 
Alice AND Lloyd Kofahl,
                                                                      Appellants
 v.
 
Randall's Food & Drugs, Inc.,
fORMERLY D/B/a Tom Thumb 
Food & DrugS,
                                                                      Appellee
 
 
 

From the 44th District Court
Dallas County, Texas
Trial Court # DV00-02808-B
 

Opinion

 




          Alice
and Lloyd Kofahl filed this slip-and-fall case against Randall’s Food & Drugs, formerly dba Tom
Thumb Food & Drugs, after Alice slipped in an unidentified liquid on the
grocery’s floor, fell, and broke her hip. 
The trial court granted Randall’s no-evidence summary judgment motion which
alleges that the Kofahls can produce no evidence that Randall’s had actual or
constructive knowledge of the spilled liquid. 

          The
Kofahls contend in four issues that the court erred by granting the summary
judgment because: (1) Randall’s can be held liable under “the Corbin rule” due to inadequate safety
policies and procedures regardless of whether it had actual or constructive
knowledge of the spill; (2) Randall’s “created unreasonably dangerous premises”
by failing to have adequate policies and procedures; (3) they presented more
than a scintilla of evidence that the spill had been on the floor long enough
to charge Randall’s with constructive knowledge; and (4) they should not be
required to prove actual or constructive knowledge under the facts of this
case. The Kofahls contend in an additional issue that the court should have
permitted further discovery regarding Randall’s policies and procedures.
          Randall’s
contends in a cross-issue that, regardless of the merits of Alice’s claim, the judgment must be affirmed as to
Lloyd because the Kofahls have not presented a separate issue challenging the
judgment with respect to Lloyd’s claim.
          Because
the Kofahls presented more than a scintilla of evidence that the liquid had
been on the floor long enough to give Randall’s constructive knowledge of its
presence and because Randall’s did not present an “independent ground” for
summary judgment on Lloyd’s claim, we will reverse and remand.
CONSTRUCTIVE KNOWLEDGE
          The
Kofahls contend in their third issue that they presented more than a scintilla
of evidence that the liquid had been on the floor long enough to charge
Randall’s with constructive knowledge of its presence.  Under settled premises liability law, if the
premises owner did not place the substance in question on the floor and did not
have actual knowledge of its presence, the plaintiff must establish that “it is
more likely than not that [the substance was on the floor] long enough to give
the premises owner a reasonable opportunity to discover it.”  Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
          Alice provided deposition testimony that the edges
of the “large” puddle of liquid she slipped in were “very tacky and gummy” as
if the puddle was “starting to dry up.” 
Although our research has not disclosed any recent cases addressing this
type of evidence, it has been held that this type of testimony will support a
finding that a liquid on the floor has been there for a sufficient length of
time to charge the premises owner with constructive knowledge of its presence.[1]  See
Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex. Civ. App.—Dallas
1977, no writ); Furr’s, Inc. v. McCaslin,
335 S.W.2d 284, 286-87 (Tex. Civ. App.—El Paso 1960, no writ); Furr’s, Inc. v. Bolton, 333 S.W.2d 688,
689-90 (Tex. Civ. App.—El Paso 1960, no writ). 
Even those these decisions are not recent, more recent decisions of the
Supreme Court seem to affirm their continuing validity.  See
e.g. Reece, 81 S.W.3d at 817 (affirming judgment in part because there was
no “evidence concerning the condition of the spilled liquid that might indicate
how long it had been there”); Wal-Mart
Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998) (affirming
judgment in part because there was no evidence “that the dirt on the macaroni
salad had dried, suggesting that it had been there for a prolonged period of
time”).
          Randall’s
cites a number of cases to support its contention that Alice’s testimony constitutes no more than a mere
scintilla of evidence to establish constructive knowledge.  See
Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162 (Tex. App.—Texarkana
1998, no pet.); Safeway Stores, Inc. v.
Harkless, 601 S.W.2d 534 (Tex. Civ. App.—Tyler 1980,
writ ref’d n.r.e.); Robledo v. Kroger Co.,
597 S.W.2d 560 (Tex. Civ. App.—Eastland 1980, writ ref’d n.r.e.); Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.); Furr’s Supermarkets, Inc. v. Arellano,
492 S.W.2d 727 (Tex. Civ. App.—El Paso 1973, writ ref’d n.r.e.).
          Unlike
the Kofahls, the plaintiffs in most of the cases cited by Randall’s presented
evidence of a liquid on the floor but failed to present any evidence that the
liquid had begun to dry.  See Richardson, 963 S.W.2d at 164-65
& n.1; Harkless, 601 S.W.2d at
537-38; Robledo, 597 S.W.2d at
560.  In some of the cases cited, the
plaintiffs presented evidence that the liquid was dirty or had shopping cart
tracks running through it.  See Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560.  However, this type of evidence has
consistently been considered inadequate to establish constructive
knowledge.  See Gonzalez, 968 S.W.2d at 937; Harkless, 601 S.W.2d at 537-38; Robledo,
597 S.W.2d at 560-61.
          In
Franklin, the plaintiff testified that she slipped in
a “dry syrupy looking substance.”  504
S.W.2d at 517.  The court concluded that
this testimony was inadequate to establish constructive knowledge because it
did not account for the fact that the substance may have been “dry” and “syrupy”
when it spilled.  Id. (citing Bolton, 333 S.W.2d at 690).  Here however, Alice testified that the liquid in which she
slipped and fell was drying around the edges, not that it was the same
consistency throughout.  See Bolton, 333 S.W.2d at 690.
          For
the foregoing reasons, we conclude that the authorities relied on by Randall’s
do not apply to the facts of this case.  Thus,
we hold that the Kofahls presented more than a scintilla of evidence to show
constructive knowledge.  See Forbes, Inc. v. Granada Biosciences,
Inc., 124 S.W.3d 167, 172 (Tex. 2003) (nonmovant must produce more than a
scintilla of evidence to defeat no-evidence summary judgment motion).
          Accordingly,
we sustain the Kofahls’ third issue.
BECAUSE RANDALL’S DID NOT ASSERT AN “INDEPENDENT GROUND”
FOR SUMMARY JUDGMENT ON LLOYD’S CLAIM, WE WILL
REVERSE THE JUDGMENT ON LLOYD’S CLAIM AS WELL
 
Randall’s contends in its sole cross-issue that,
notwithstanding our disposition of the Kofahls’ third issue, we must affirm the
judgment as to Lloyd’s claim for loss of consortium because the Kofahls have
not presented a separate issue on appeal challenging “the summary judgment
ground addressed to [Lloyd’s] claims.”
“[W]hen an appellant does not properly challenge
each independent ground asserted for summary judgment as to a claim, the claim
will be affirmed.”  City of Glenn Heights v.
Sheffield Dev. Co., 55 S.W.3d 158,
163 (Tex. App.—Dallas 2001, pet. denied); accord Wrenn v. G.A.T.X. Logistics, Inc.,
73 S.W.3d 489, 493 (Tex. App.—Fort Worth 2002, no pet.).
Randall’s summary judgment motion states:
                   Defendant
moves for summary judgment on the ground that there is no evidence of an
essential element of Plaintiff Alice Kofahl’s negligence claim on which she
will have the burden of proof at trial. 
Specifically, there is no evidence regarding whether Defendant knew or
should have known of a premises condition which posed an unreasonable risk of
harm to Mrs. Kofahl.  Therefore,
Defendant is entitled to judgment as a matter of law on this claim.  Defendant further moves for summary judgment
on Plaintiff Lloyd Kofahl’s loss of consortium claim on the ground that such
claim is wholly derivative of his wife’s claim. 
Because her claim must fail as a matter of law, Mr. Kofahl’s claim must
likewise fail.
 
From this quoted excerpt, it is apparent that
Randall’s ground for summary judgment as to Lloyd’s claim depends entirely on a
favorable finding on its ground for summary judgment on the issue of
constructive knowledge.  Therefore, it
cannot be properly characterized as an “independent ground” for summary
judgment.  Cf. Wrenn, 73 S.W.3d at 493; City
of Glenn
Heights, 55 S.W.3d at 163.  Accordingly, we overrule Randall’s sole
cross-issue.
Because of our disposition of these issues, we
need not address the remainder of the issues presented.  We reverse the judgment and remand this cause
to the trial court for further proceedings consistent with this opinion.
 
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief
Justice Gray dissenting)
Reversed and remanded
Opinion delivered and
filed October 27, 2004
[CV06]




    [1]          Notably,
our research has disclosed no cases (recent or otherwise) concluding that such
evidence is inadequate to show constructive knowledge.


