                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-297-CV


LOTTIE HUNNICUTT                                                     APPELLANT

                                        V.

DALLAS/FORT WORTH                                                      APPELLEE
INTERNATIONAL AIRPORT
BOARD, A POLITICAL SUBDIVISION
OF THE CITY OF DALLAS AND
THE CITY OF FORT WORTH

                                    ------------

           FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      The trial court granted summary judgment for Appellee Dallas/Fort Worth

International Airport Board, a Political Subdivision of the City of Dallas and the

City of Fort Worth (“DFW”) (Appellee claims that it is actually a unit of local




      1
          … See Tex. R. App. P. 47.4.
government, not a subdivision) on the premises liability action brought by

Appellant Lottie Hunnicutt. In two issues, Hunnicutt argues that she was an

invitee while at DFW and that she provided sufficient evidence of constructive

knowledge of a premises defect to create a material issue of fact. Because we

hold that the trial court did not err by granting summary judgment, we affirm.

                               Background Facts

      On November 21, 2004, while at DFW to catch a flight, Hunnicutt

sustained injuries when she lost her balance and fell while riding an escalator.

In 2006, she brought this suit against DFW for premises liability, alleging that

the escalator “jerked,” causing her fall.

      DFW filed a traditional motion for summary judgment, alleging that

Hunnicutt was a licensee, not an invitee; that the escalator was not

unreasonably dangerous; and that DFW had no actual knowledge of the

allegedly dangerous condition.    DFW further argued that even if Hunnicutt

raised a fact issue on whether she was an invitee, DFW had no constructive

knowledge of the condition. DFW also filed a no-evidence summary judgment

motion, alleging that there was no evidence that Hunnicutt was an invitee, that

the escalator posed an unreasonable risk of harm, or that DFW had actual or

constructive knowledge of the allegedly dangerous condition.




                                        2
      Hunnicutt filed a response arguing that the airlines collect a “Passenger

Facility Charge” from airline passengers and remit those fees to DFW, which

uses the fees to pay for certain capital projects. Accordingly, Hunnicutt argued,

she paid to use the premises, raising a fact issue as to whether she was an

invitee. She also argued that her evidence raised a fact issue as to whether

DFW knew or should have known that the escalator had defective rollers and

posed an unreasonable risk of harm. The trial court granted summary judgment

without specifying the grounds. Hunnicutt then filed this appeal.

                                Standard of Review

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.2 The trial court must grant the motion unless

the nonmovant produces summary judgment evidence that raises a genuine

issue of material fact.3 The nonmovant must specifically identify the evidence




      2
          … Tex. R. Civ. P. 166a(i).
      3
     … See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).

                                        3
relied upon to raise an issue of fact; the trial court is not required “to wade

through a voluminous record to marshal a respondent’s proof.” 4

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.5      If the nonmovant

brings forward more than a scintilla of probative evidence that raises a genuine

issue of material fact, then a no-evidence summary judgment is not proper. 6

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of

rule 166a(i).7    If the appellants failed to produce more than a scintilla of

evidence under that burden, then there is no need to analyze whether appellee’s

summary judgment proof satisfied the less stringent rule 166a(c) burden. 8



      4
      … See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 408 (Tex.
App.—Tyler 2008, no pet.); see also Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App.—San Antonio 2006, no pet.); Tex. R. Civ. P. 166a(i) & cmt.
(“To defeat a motion made under paragraph (i), ... [a nonmovant’s] response
need only point out evidence that raises a fact issue on the challenged
elements.”).
      5
          … Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
      6
      … Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
      7
          … Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
      8
          … Id.

                                       4
                                   Analysis

      In Hunnicutt’s second issue, she argues that she produced sufficient

evidence showing that DFW had actual or constructive knowledge of a

premises defect to defeat DFW’s summary judgment motion. In its no-evidence

motion, DFW argued that it is a unit of local government entitled to sovereign

or governmental immunity unless that immunity has been waived under the

Texas Torts Claims Act (“TTCA”). Under the TTCA, in a premises defect case,

a governmental unit owes the claimant only the duty that a private person owes

to a licensee, “unless the claimant pays for the use of the premises.” 9     A

private property owner is liable to a licensee for defects on the premises only

if the property owner has actual knowledge of the defects.10 If the claimant

pays for the use of the premises, then the claimant is treated as an invitee.11

A private property owner is liable to an invitee for premises defects of which

the owner has actual knowledge and for defects of which the owner has



      9
      … Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon 2005 &
Supp. 2008).
      10
       … City of Dallas v. Thompson, 210 S.W.3d 601, 602–03 (Tex. 2006);
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.
1992).
      11
      … Tex. Parks & Wildlife Dep’t v. Davis, 988 S.W.2d 370, 374 (Tex.
App.—Austin 1999, no pet.); M.D. Anderson Hosp. & Tumor Inst. v. Felter,
837 S.W.2d 245, 247 (Tex. App.—Houston [1st Dist.] 1992, no writ).

                                      5
constructive knowledge, that is, defects the owner would have discovered from

a reasonable inspection.12

      The parties dispute whether Hunnicutt paid to use the premises and was

therefore an invitee. But if DFW had no actual or constructive knowledge of

the condition that caused Hunnicutt’s injuries, it is not liable to her even if she

was an invitee.13

      Knowledge that escalator rollers will need to be repaired or replaced after

use has a direct relationship to the reasonableness of the care exercised by

DFW.14 But knowledge that escalator rollers can deteriorate over time is not

knowledge that the rollers are a condition that presents an unreasonable risk of

harm.15

      Hunnicutt pointed to no evidence in the record showing or raising a fact

issue as to whether DFW actually knew that the escalator had defective rollers

before her fall. Thus, DFW is liable to her only if it had constructive knowledge

and she was an invitee.




      12
      … CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000);
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813 (Tex. 2002).
      13
           … See CMH Homes, 15 S.W.3d at 102–03.
      14
           … See id. at 102.
      15
           … See id.

                                        6
      Constructive knowledge has a temporal element; to show constructive

knowledge, a plaintiff must show that the condition had existed long enough

for the owner to have had a reasonable opportunity to discover it in the

exercise of ordinary care.16 Although what constitutes a reasonable time for

discovery varies from case to case, “there must be some proof of how long the

hazard was there before liability can be imposed on the premises owner for

failing to discover and rectify, or warn of, the dangerous condition.” 17

      In her response to the no-evidence motion, Hunnicutt pointed to the

deposition of Robert Alford, a DFW employee whose job at the time of

Hunnicutt’s accident, included performing maintenance on DFW’s escalators

and the expert report of Robert Creak, an elevator and escalator consultant, as

evidence of DFW’s constructive knowledge. Alford testified that he replaced

some track rollers on the escalator in question on November 22, 2004, the day

after Hunnicutt’s accident; that he believed that broken track rollers could cause

a step to be unstable; and that he did not believe that an escalator would “jerk”

if properly maintained. In no part of the deposition testimony provided and



      16
          … See Reece, 81 S.W.3d at 814; Wal-Mart Stores, Inc. v. Diaz, 109
S.W.3d 584, 589 (Tex. App.—Fort Worth 2003, no pet.); see also CMH
Homes, 15 S.W.3d at 102 (declining to limit the temporal element of premises
liability to slip-and-fall cases).
      17
           … Reece, 81 S.W.3d at 816.

                                        7
pointed out by Hunnicutt did Alford testify about how long the rollers were

defective before the accident. Alford did not testify about any maintenance

performed on the escalator before the accident.

      In his expert report, Creak stated that, in his opinion, the step rollers on

the escalator were not being properly maintained in accordance with industry

standards and that, as a result, the three rollers replaced on November 22 were

more probably than not defective when Hunnicutt’s accident occurred. He

further stated that it was “possible” that one of the defective rollers was on the

step on which Hunnicutt was standing when she fell.

      With respect to the inspection methods used by DFW, Creak stated that

the two methods of inspection used by the maintenance crew were deficient.

Under one method, the crew would check the steps by looking at the steps

from the lower pit while the steps were moving, which Creak stated would give

the technician “less than one second” to observe a step and its trail rollers pass

by his line of vision. With the second method, the crew would ride each step

to test for movement on the step, which Creak stated would “not guarantee

that a defective roller would be in the right position to be detected at the exact

time that the step [was] being checked.” Instead, Creak stated, a “much more

effective and thorough method” would be to remove each step from the step

band. Creak asserted that nothing in the records of the service history provided

                                        8
to him or in deposition testimony of a DFW technician, also provided to him,

indicated that this was done. Creak stated that “industry standard and practice

for escalator maintenance provides for an annual clean down and inspection

that includes removal and a condition check of all step bodies and their rollers.”

      Absent from Creak’s report are any statements about how long a roller

typically lasts or what additional inspection methods might constitute

reasonable inspections between the annual industry-standard inspections.

Accordingly, even considering Creak’s report, an escalator could be properly

inspected on January 1 of a year, but if rollers became defective at any time

during the year after that inspection, even following industry standards, this

defective state would not be discovered by an inspector until the following

yearly inspection.

      Hunnicutt contends that if DFW had reasonably inspected the escalator

by inspecting the escalator in accordance with industry standards, the defective

rollers should have been discovered. The problem with this statement is that

without evidence of when the rollers became defective, no one can say whether

DFW could have discovered the problem and remedied it prior to her accident.

In other words, stating that DFW could have discovered the problem by

inspecting the escalator in a manner other than it did presumes that the problem

existed and was discoverable when the inspection occurred.

                                        9
      There is no evidence of when the problem developed. And accordingly,

even if DFW had inspected the escalator in the manner suggested by Creak at

its last inspection of the escalator, if the problem had not yet developed, DFW

could not have discovered it and fixed it. If there is no evidence that DFW had

a reasonable opportunity to discover and fix the problem, there is no evidence

that DFW had constructive knowledge that the problem existed.18

      In her reply brief, Hunnicutt asserts that length of time is only one manner

in which constructive knowledge can be established and points to Keetch v.

Kroger Co. 19 for the proposition that a property owner can have constructive

knowledge of a dangerous condition if the property owner created the

condition. The supreme court in Keetch stated that an owner’s creation of a

dangerous condition is circumstantial evidence of knowledge of the condition,

but “the jury still must find that the owner or occupier knew or should have

known of the condition.” 20

      The supreme court has held that a plaintiff may recover by showing that

the defendant either “actually knew” of the dangerous condition or “if a




      18
           … See Reece, 81 S.W.3d at 816.
      19
           … 845 S.W.2d 262, 265 (Tex. 1992).
      20
           … Id. at 265.

                                       10
reasonable inspection would have revealed that the unit was no longer safe.” 21

But the court has not held that failure to inspect demonstrates that the property

owner created the condition.22

      The dangerous condition alleged in this case was the defective rollers, not

the escalator itself. There is no evidence that DFW placed defective rollers in

the escalator or that DFW otherwise created the condition. Rather, the claim

is that the rollers deteriorated or somehow became defective and that DFW

should have discovered their condition. An owner is not liable for deterioration

unless it actually knew or by reasonable inspection would have discovered the

deterioration.23 Here, the report stating that DFW failed to reasonably inspect

does not help Hunnicutt because (1) according to Creak, a reasonable

investigation occurs once a year, (2) there is no evidence as to when the rollers

became defective, and therefore, (3) there is no evidence that conducting such


      21
           … See CMH Homes, 15 S.W.3d at 102.
      22
        … Id. (holding there was no evidence that property owner failed to
inspect as often as it reasonably should have and no evidence that dangerous
condition had existed for a sufficient time that property owner had constructive
notice of the condition); Fort Brown Villas III Condo. Assoc, Inc. v. Gillenwater,
No. 07-1028, 2009 WL 1028047, at *4 (Tex. Apr. 17, 2009) (holding there
was no evidence that property owner actually knew of the dangerous condition
of a lounge chair, that it had failed to reasonably inspect the chair, or that the
dangerous condition on the chair existed for any length of time prior to the
accident).
      23
           … CMH Homes, 15 S.W.3d at 101–03.

                                       11
an inspection would have allowed DFW to discover the problem and remedy it.

Even if Creak had stated that reasonable inspection means taking the steps off

of the elevator every day (which he did not), to defeat summary judgment,

there must still have been some evidence that the rollers became defective at

such a time that the condition would have been discoverable upon proper

inspection.

      Because there is no evidence that DFW had constructive knowledge of

the defective rollers, we hold that the trial court did not err by granting

summary judgment for DFW. Accordingly, we overrule Hunnicutt’s second

issue and do not reach her first issue.24

                                     Conclusion

      Having overruled Hunnicutt’s second issue, which is dispositive, we

affirm the trial court’s judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: July 30, 2009



      24
           … See Ford Motor Co., 135 S.W.3d at 600.

                                        12
