Opinion filed June 26, 2014




                                     In The


        Eleventh Court of Appeals
                                   ______________

                              No. 11-12-00129-CV
                                   ______________

                     MICHELLE DIMMITT, Appellant
                                        V.
 BROOKSHIRE GROCERY COMPANY D/B/A BROOKSHIRE’S
      AND SUPERIOR SANITATION, INC., Appellees

                     On Appeal from the 220th District Court
                            Comanche County, Texas
                     Trial Court Cause No. CCCV-10-14910

                      MEMORANDUM OPINION
      Michelle Dimmitt filed suit against Brookshire Grocery Company d/b/a
Brookshire’s and Superior Sanitation, Inc., alleging a premises liability claim for
personal injuries that she sustained when she slipped and fell in a Brookshire’s
grocery store. The trial court granted traditional summary judgments in favor of
both defendants and ordered that Dimmitt take nothing. Dimmitt challenges the
trial court’s grant of summary judgment as to each defendant. We reverse and
remand.
          The summary judgment evidence shows that Brookshire owned and operated
a grocery store in Comanche. On the night giving rise to the circumstances of this
case, Dimmitt entered the Brookshire’s store at around 9:30 p.m. She saw a cone
that contained a “wet floor” warning. She also saw a person a few aisles over who
was pushing a floor scrubber and was using it to clean the floor. The floor
scrubber dispensed the correct amount of water until it turned the corners leading
to the next aisle. Something was wrong with the floor scrubber, and it had a
history of leaking excess water on the floor as it turned the corners at the end of the
aisles.
          Brookshire had contracted in writing with Superior to regularly scrub the
floors in the Comanche store. The floor scrubber belonged to Superior but was
kept at the Brookshire’s store. Occasionally, Brookshire’s employees used the
scrubber and always had some other employee follow behind it with a mop to
remove the excess water left on the floor as the scrubber was turned around the
ends of the aisles. On this particular occasion, however, the summary judgment
evidence shows that Superior employees were conducting the scrubbing operation.
          According to the summary judgment evidence, Dimmitt initially was able to
walk safely through the store but fell when she encountered one of the puddles of
excess water that had been left by the scrubber. After Dimmitt fell, the store’s
grocery manager, David McLearen, ordered that the scrubbing process cease until
the puddle of excess water was cleaned up.           McLearen, as well as another
Brookshire employee, offered summary judgment evidence that the puddle was the
result of excess water left by the scrubbing machine.
          Subsequently, Dimmitt sued Brookshire and claimed that she had injured her
knee in the fall and that, among other things, the injury resulted in her having a
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knee operation. After it was sued, Brookshire filed a third-party action against
Superior, in which it sought to attribute the liability for Dimmitt’s fall to Superior.
Dimmitt amended her petition to include Superior as a Defendant. In her amended
petition, Dimmitt alleged that an employee of Superior created a hazardous puddle
while operating a floor scrubber, that the puddle was a premises defect, and that
the defendants knew about and failed to warn Dimmitt of the condition.
      Brookshire later nonsuited its third-party claim against Superior. Superior
and Brookshire each subsequently filed a motion for summary judgment. Each of
the motions contained traditional as well as no-evidence grounds. Each party
argued that it provided adequate notice that the floor was wet. Brookshire also
argued that it owed no duty to Dimmitt and that it was not liable for the activities
of Superior, an independent contractor. Superior did not contest the assertion that
it owed a premises defect duty to Dimmitt. The trial court granted both parties’
traditional motions for summary judgment and ordered that Dimmitt take nothing.
In its written orders, the trial court did not state the grounds upon which it based its
rulings. Because the trial court granted the defendants’ traditional motions for
summary judgment and because it neither granted nor denied the no-evidence
motions, we do not address the arguments in the briefs that relate to the no-
evidence motions.
      Superior does not dispute that it owed Dimmitt the duty that is due to a
licensee. The only issue involving Superior is the adequacy of the warning given
by Superior in the discharge of that duty. However, before we address the issue of
the adequacy of the warning, we will first address whether Brookshire also owed
that duty to Dimmitt.
      Brookshire argued in its motion for summary judgment that it was not liable
for injuries resulting from a condition created by an independent contractor over
which it exerted no control. Dimmitt contended that, regardless of who created the
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condition, Brookshire owed a duty to eliminate or warn its customers of dangerous
conditions of which it was aware.
      The elements of a negligence cause of action are a duty, a breach of that
duty, and damages proximately caused by the breach of that duty. Doe v. Boys
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Therefore, to
establish tort liability, the plaintiff, including, as here, an injured invitee, must
prove the existence and violation of a legal duty owed to him by the defendant
owner. Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 631 (Tex. 1976). The
existence of a legal duty is a question of law. TXI Operations, L.P. v. Perry, 278
S.W.3d 763, 765 (Tex. 2009). The extent of the duty owed by an occupier of land
depends on the legal status of the visitor. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d
1, 3 (Tex. 1996). An owner or occupier of land generally has a duty to invitees to
use reasonable care to make and keep the premises safe. Redinger v. Living, Inc.,
689 S.W.2d 415, 417 (Tex. 1985). That “duty is to exercise reasonable care to
protect against danger from a condition on the land that creates an unreasonable
risk of harm of which the owner or occupier knew or by the exercise of reasonable
care would discover.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.
2000) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)).
      The legal status of the parties here is not in dispute.           The record
demonstrates that Brookshire owned and operated a grocery store on the premises,
that it hired Superior as an independent contractor to clean the floors in its store,
and that Dimmitt—as a customer of the grocery store—was an invitee.
      Generally speaking, an owner/occupier does not have a duty to see to it that
an independent contractor performs its work in a safe manner. Redinger, 689
S.W.2d at 418. However, an owner/occupier may be liable when it exercises
control over the work of the independent contractor. Id. That right of control must
be more than merely a general right to direct that the work start or stop, to conduct
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an inspection of the premises, or to receive reports. Id. But an “owner/occupier
cannot turn a blind eye to hazardous conditions created by the independent
contractor when it (the owner/occupier) retains control of the property and
continues to welcome invitees (who did not create or work for one who created the
condition) onto its premises.” Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 47 (Tex.
App.—Amarillo 2002, pet. denied).
         Regardless of any question as to whether Brookshire controlled the work, it
unquestionably retained control of the premises while the independent contractor
cleaned its floors.     The record shows that Brookshire continued to welcome
customers into the store and that the customers were shopping in the area where
work was being conducted.         Thus, Brookshire was not entitled to summary
judgment on the ground that the condition was created by an independent
contractor because the record establishes as a matter of law that Brookshire had
control of the premises.
         Further, the summary judgment evidence conclusively shows that
Brookshire at least should have known of the potentially hazardous activity
pertaining to the creation of excess water puddles left by Superior’s scrubbing
activities.   The summary judgment evidence shows that Brookshire had used
Superior’s leaking scrubber before, that it knew the scrubber leaked, and that it had
assigned one of its own employees to follow behind the scrubber to mop up excess
water.     Under these circumstances, we cannot say, as a matter of law, that
Brookshire did not owe a duty to Dimmitt to use reasonable care to make and keep
the premises safe and to exercise reasonable care to protect against danger from a
condition on Brookshire’s property that created an unreasonable risk of harm of
which Brookshire knew or, by the exercise of reasonable care, would discover.
Insofar as Dimmitt’s second issue addresses whether, as a matter of law,
Brookshire owed her no duty, the issue is sustained.
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      We next address whether Brookshire and Superior discharged their
respective duties by providing adequate notice of the dangerous condition as a
matter of law. The elements of a premises liability claim when the injured party is
an invitee are the following: (a) the owner/operator had actual or constructive
knowledge of some condition on the premises; (b) the condition posed an
unreasonable risk of harm; (c) the owner/operator did not exercise reasonable care
to reduce or eliminate the risk; and (d) the owner/operator’s failure to use such care
proximately caused the plaintiff’s injuries. Corbin, 648 S.W.2d at 296.
      As discussed above, Brookshire owed a duty to warn or make the premises
safe for invitees because it was in possession of the premises.         Additionally,
because Superior’s employees created the condition, Superior owed a similar duty
to warn of or make the dangerous condition safe for Brookshire’s customers. City
of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex. 1986) (“[A] private person who
has created the dangerous condition may be liable even though not in control of the
premises at the time of injury.”); see also Strakos v. Gehring, 360 S.W.2d 787,
795–96 (Tex. 1962) (“The law places a duty to warn of dangerous conditions . . .
upon one who creates such conditions or who is in control of the area and permits
such conditions to persist.”).
      As noted, in a premises liability claim, the plaintiff must show that the
owner or occupier of land breached its duty “to exercise reasonable care to protect
against danger from a condition on the land that creates an unreasonable risk of
harm of which the owner or occupier knew or by the exercise of reasonable care
would discover.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex.
2010) (quoting CMH Homes, 15 S.W.3d at 101). The duty is discharged, however,
if the defendant made the condition reasonably safe or adequately warned the
invitee of the dangerous condition. Del Lago Partners, Inc. v. Smith, 307 S.W.3d
762, 771 (Tex. 2010).
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      According to Superior, “Dimmitt acknowledged that the cleaning crew’s
presence in the store and the wet-floor sign meant that the floor could be wet,” and
it argues that this “was sufficient to discharge [its] obligation to warn her of a wet
floor.” Appellees argue that Brooks v. PRH Investments, Inc., 303 S.W.3d 920
(Tex. App.—Texarkana 2010, no pet.); Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d
367 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); and Tucker v. Cajun
Operating Co., No. 11-07-00026-CV, 2008 WL 802985 (Tex. App.—Eastland
2008, no pet.) (mem. op.), support their positions. However, those cases are
distinguishable in that there was no question that the conditions giving rise to the
injury were the very conditions to which the warnings were directed.            Here,
Dimmitt contends that a puddle left by the broken scrubbing machine is a different
condition than damp floors from normal scrubbing operations. She argues that a
“wet floor” cone did not establish as a matter of law that the warning was adequate
regarding the puddle that she encountered because “[g]eneral knowledge that a
floor has been cleaned and a sign twenty feet away or more are not conclusively
adequate warning of an unusually wet spot caused by defective equipment.”
      Resolving any doubts from the evidence in Dimmitt’s favor, we assume that
the nearest warning sign was a floor cone located at least twenty feet from where
she fell. McLearen testified that, when the scrubber made 180-degree turns at the
end of each aisle, a small strip of water leaked onto the floor. Dimmitt described
the water as a “puddle.” Elizabeth Ann Heflin, a Brookshire employee, testified
that she had observed water “gushing” from the scrubber in the past and that there
was “quite a bit of water on the floor” after Dimmitt fell. After hearing that
someone slipped on the wet floor, McLearen found water on the floor and
instructed the floor cleaners to stop cleaning the floors and mop up the water.
McLearen agreed that there was “excess” water and testified that he instructed
them to immediately mop up the water “[b]ecause someone could slip.” Although
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a reasonable inference to draw from this testimony might be that a “wet floor”
cone constituted an adequate warning as to regular scrubbing activities, it does not
establish that, as a matter of law, the cone, located twenty feet from the puddle
where Dimmitt fell, adequately warned customers of the excess water condition
that she encountered.
      “Negligence is commonly a question of fact unless the evidence establishes
a complete absence of negligence as a matter of law.” TXI Operations, 278
S.W.3d at 765. While a general warning is some evidence of exercising reasonable
care to eliminate the risk posed by a dangerous condition, it is not conclusive
evidence of an adequate warning if it does not alert an invitee to the particular
hazard. See State v. McBride, 601 S.W.2d 552, 556–57 (Tex. Civ. App.—Waco
1980, writ ref’d n.r.e.) (concluding a “SLOW” sign and a “35 MPH” sign were
general instructions that did not warn driver “of the dangerous condition to which
she was subjected, to wit, the slick and muddy condition where the accident
occurred”).
      We agree with Dimmitt that the dangerous condition about which the
defendants had a duty to warn was excess water left by a defective scrubber.
Although the summary judgment record reveals some evidence that the defendants
warned Dimmitt and other customers about the wet floor and that Dimmitt was
aware that the floors were being scrubbed, the evidence does not conclusively
show that a “wet floor” cone placed some twenty feet away from where she fell
adequately warned her about excess water left by a defective scrubber. See TXI
Operations, 278 S.W.3d at 765 (concluding warning was some but not conclusive
evidence because “it neither informed the driver of road hazards generally, nor did
it identify the particular hazard that TXI now says the sign was meant to warn
against”).


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      We note that we are not concluding that the wet floor signs were insufficient
to warn Dimmitt of the dangerous condition; we simply cannot conclude that there
was an adequate warning as a matter of law. Whether Brookshire and Superior
adequately warned Dimmitt of the dangerous condition is a question of fact that
should be resolved by the factfinder. It very well might be that the factfinder will
find that the warning was sufficient both as to condition and proximity, but we are
unable to make that determination as a matter of law. For all of the foregoing
reasons, Superior and Brookshire were not entitled to summary judgment on the
ground that they provided an adequate warning. Those portions of Dimmitt’s first
and second issues that pertain to whether Brookshire and Superior established, as a
matter of law, the adequacy of the warnings are sustained.
      Because Superior and Brookshire were not entitled to summary judgment on
the grounds asserted in their traditional motions for summary judgment, we reverse
the orders of the trial court in which it granted summary judgment in favor of
Superior and Brookshire and dismissed Dimmitt’s claims, and we remand the
cause to the trial court for further proceedings consistent with this opinion.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


June 26, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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