Opinion issued January 29, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-17-00843-CV
                            ———————————
                         ANGELA CARTER, Appellant
                                        V.
                 TARANTINO PROPERTIES, INC., Appellee


                    On Appeal from the 215th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-57423


                          MEMORANDUM OPINION

      Appellant Angela Carter, a tenant in a Houston Housing Authority apartment

complex managed by appellee Tarantino Properties, Inc., asserted a premises

liability claim against Tarantino based on her allegation that the glass cover of an

improperly installed bathroom light fixture fell and cut her wrist. The trial court
granted Tarantino’s traditional motion for summary judgment on Carter’s premises

liability claim and denied Carter’s motion for new trial. Carter appeals those

rulings.

                                    Background

      In early January 2014, Carter moved into the Irvington Village Apartments,

a public housing project owned by the Houston Housing Authority. 1 Tarantino

began managing the apartment complex on February 1, 2014. On June 25, 2014,

while Carter was in the process of closing her bathroom medicine cabinet, the glass

cover (or glass shade) for the light fixture fell and cut her right wrist. Broken glass

also cut her leg. Carter’s daughter called 9-1-1, and Carter was taken by ambulance

to a hospital where her wrist wound was sutured and her leg wound was cleaned.

Because of subsequent numbness and painful swelling in her right hand, a hand

physician sent Carter to physical therapy. According to Carter’s summary-

judgment affidavit, since her wrist was cut, she has suffered numbness and painful

swelling in her right hand and has been unable to perform a number of daily tasks

that she was able to perform before she was injured.

      With its traditional motion for summary judgment on Carter’s premises

liability claim, Tarantino included, among other items, the following summary-

judgment evidence: Carter’s deposition and the affidavits of Tarantino employees

1
      Carter also sued the Houston Housing Authority, which obtained summary
      judgment and a severance of Carter’s claims.
                                          2
Rachel Chavez and Sal Thomas. Carter’s response to Tarantino’s motion included

the affidavits of Carter and of Frank Rogers, her electrical expert, and Tarantino’s

discovery responses.

      The trial court granted Tarantino’s traditional motion for summary

judgment,2 and Carter then filed a motion for new trial as to that ruling. The trial

court denied that motion, and Carter appealed. Appearing pro se on appeal and

proceeding as an indigent, Carter asserts in two issues that the trial court erred in

granting Tarantino’s traditional motion for summary judgment and in denying her

motion for new trial.

      We affirm.

                                       Analysis

      We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). The movant has the burden of showing that no

genuine issue of material fact exists and that it is therefore entitled to judgment as a

matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A

defendant moving for summary judgment must conclusively negate at least one

essential element of the plaintiff’s cause of action. Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex. 1997).


2
      Tarantino also filed a no-evidence motion for summary judgment on
      Carter’s negligence claims. The trial granted the no-evidence motion, but
      Carter does not complain on appeal about that ruling.
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      In reviewing a traditional motion for summary judgment, we must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light

of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007). We must consider all the evidence in the light most

favorable to the nonmovant, indulging every reasonable inference in favor of the

nonmovant and resolving any doubts against the motion. See id. at 756. In our

review, we take the competent evidence favorable to the nonmovant as true.

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).

      The elements of an invitee’s premises liability claim are:

         (1) the plaintiff was an invitee;

         (2) the defendant was a possessor of the premises;

         (3) a condition of the premises created an unreasonable risk of harm to
             the plaintiff;

         (4) the defendant knew or reasonably should have known of the condition
             (actual or constructive knowledge);

         (5) the defendant failed to exercise ordinary care to protect the invitee
             from danger by failing to adequately warn the plaintiff of the
             condition or by failing to make the condition reasonably safe; and

         (6) the defendant’s failure was a proximate cause of injury to the plaintiff.

See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); LMB, Ltd.

v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006); Seideneck v. Cal Bayreuther

Assocs., 451 S.W.2d 752, 753–54 (Tex. 1970).


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      Tarantino moved for summary judgment on elements three through six. We

begin with the fourth element: the threshold issue of Tarantino’s actual or

constructive knowledge of the alleged dangerous condition. See Farrar v. Sabine

Mgmt. Corp., 362 S.W.3d 694, 700 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(citing Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996)); Hall v. Sonic

Drive-In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.—Houston [1st Dist.]

2005, pet. denied) (same).

      “The duty owed by an owner or occupier of premises to an invitee is not that

of an insurer.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). An

invitee must establish that the defendant knew or should have known of the

condition that posed an unreasonable risk of harm. Moreno, 201 S.W.3d at 688;

Farrar, 362 S.W.3d at 700; Hall, 177 S.W.3d at 644. A possessor’s knowledge of

a dangerous condition can be actual or constructive. Del Lago Partners, 307

S.W.3d at 769. Carter does not contend that Tarantino had actual knowledge of the

alleged dangerous condition, nor is there summary-judgment evidence that

Tarantino had actual knowledge.

      Constructive knowledge is “what a person after a reasonable inspection

ought to know or have reason to know.” Duncan v. First Tex. Homes, 464 S.W.3d

8, 16 (Tex. App.—Fort Worth 2015, pet. denied) (citing Lopez, 929 S.W.2d at 3–

4); see also Seideneck, 451 S.W.2d at 754 (“[B]ecause the owner or occupier is


                                        5
charged with knowledge of any dangerous condition that a reasonable inspection

would have revealed, the plaintiff must show as a matter of law or through a

finding of fact that the owner ‘knew or should have known of the existence of the

condition and that he should have appreciated its dangers.’”). “‘The inviter . . . will

not be held liable for defects which would not have been disclosed by a reasonably

careful inspection, even though no such inspection has been made.’” Kansas City

So. R.R. v. Guillory, 376 S.W.2d 72, 76 (Tex. Civ. App.—Beaumont 1964, writ

ref’d n.r.e.) (quoting 65 C.J.S. Negligence § 51).

      Because the core of the duty [to an invitee] depends on actual or
      constructive knowledge of a dangerous condition that a reasonable
      inspection would reveal, it follows that an owner or occupier is not
      liable for deterioration of its premises unless it knew of or by
      reasonable inspection would have discovered the deterioration.

             Many building materials will, over time, deteriorate and require
      repair or replacement. That does not necessarily mean that the owner
      or occupier has created a dangerous condition or that the owner has
      actual or constructive knowledge of a dangerous condition.

Daenen, 15 S.W.3d at 101 (citations omitted).

      Carter’s premises liability claim is that the bathroom light fixture was “jerry-

rigged”—it was improperly attached to the wall with just one nail, and when the

light fixture became dislodged, its glass cover fell off, breaking and cutting Carter.

Carter asserts that when Tarantino employee Rachel Chavez inspected Carter’s

apartment on April 11, 2014, she should have discovered that the light fixture was



                                          6
improperly installed and thus a dangerous condition. Chavez’s inspection report

does not indicate that she inspected the light fixture.

      Carter’s expert Rogers stated in his summary-judgment affidavit that, in his

opinion, the fixture had been improperly installed by securing it to the wall with a

nail. Rogers opined that if a “reasonable, proper visual and physical inspection” of

the fixture had been done between February 1, 2014 and June 25, 2014, “any

reasonable inspector would have determined that that lighting fixture was not

securely attached to the bathroom wall” and that it needed to be replaced. Rogers

further opined that if Chavez did not inspect the light fixture, she should have

inspected it because it was an “older-type lighting fixture” that would have

“flagged the attention of any reasonable inspector to properly inspect it.”

      Regarding constructive knowledge, Tarantino first notes that it was not the

property manager and did not perform the move-in inspection in January 2014,

when Carter moved in. Next, Tarantino highlights that Carter’s own testimony

establishes that an inspection would not have detected the alleged dangerous

condition and that no one had any reason to suspect a problem with the fixture or

its cover.

      Specifically, Carter testified that the alleged dangerous condition was not

visible because the light fixture itself was covering the nail. She testified that she

saw the light fixture daily for about five months, and the alleged problem was


                                           7
never visible until the light fixture came down “because the light fixture was

covering the problem.” Carter testified that “you couldn’t see anything wrong

with it. It was perfect. It looked perfect to me until it came down on me.” She

testified that the cover to the light fixture had never come off before. Carter also

admitted in her brief that the condition of the base of the light fixture (attached to

the wall with “an old nail”), which she characterized as “jerry-rigged”, was

“imperceptible.”

      Carter viewed the light fixture in her bathroom multiple times a day and

never saw anything unusual: it never looked like it was coming off the wall, nor

did it look out of place. Neither the fixture nor its cover ever appeared broken,

hanging, or loose. Carter said that she opened and closed the medicine cabinet

below the light fixture daily because she kept her toothbrush and toothpaste in it.

When she closed the medicine cabinet, the fixture did not make any sound, such as

a rattling sound, indicating that it was loose. Nothing about the light fixture or its

cover concerned Carter. She further admitted that nothing would indicate to her or

anybody else that there was anything wrong with the light fixture. In the

approximately five months that Carter lived in the apartment before the incident,

she never reported to Tarantino any incidents or complaints regarding the light

fixture or cover.




                                          8
      Carter’s own testimony establishes that the alleged dangerous condition—

the single nail affixing the light fixture’s base to the wall above the medicine

cabinet—was concealed, and therefore a visual inspection of the light fixture

would not have detected how the base of the light fixture was affixed to the wall.

Further, Carter’s testimony establishes that the only way to determine that the light

fixture had been improperly installed would have been to detach it from the wall,

and Carter’s expert is silent on how a visual or physical inspection would have

revealed the alleged improper installation. His statement that “any reasonable

inspector would have determined that that lighting fixture was not securely

attached to the bathroom wall” is conclusory, and a “conclusory statement of an

expert witness is insufficient to create a question of fact to defeat summary

judgment.” McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). Also, Carter’s

expert fails to state that, in the absence of any complaints or problems with the

light fixture, a reasonable inspection would have included detaching the light

fixture from the wall to make a determination of proper installation.

      Because Carter’s summary-judgment evidence does not raise a fact issue on

Tarantino’s constructive knowledge of the alleged dangerous condition, and

because Tarantino’s summary-judgment evidence establishes that no genuine issue

of material fact exists on its constructive knowledge, Tarantino has disproved, as a

matter of law, the constructive-knowledge element of Carter’s premises liability


                                         9
claim. The trial court properly granted Tarantino’s traditional motion for summary

judgment on Carter’s premises liability claim. See Elliott-Williams Co. v. Diaz, 9

S.W.3d 801, 803 (Tex. 1999) (summary judgment proper if defendant disproves at

least one element of plaintiff’s claim). We therefore overrule Carter’s two issues.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Richard Hightower
                                              Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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