                                   NO. 07-06-0464-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                   MAY 17, 2007
                          ______________________________

                              MARY ELIZABETH GRIGGS,

                                                               Appellant

                                             v.

                         AMARILLO NURSING CENTER, INC.,

                                                      Appellee
                        _________________________________

             FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                    NO. 54,458-A-B; HON. HAL MINER, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Mary Elizabeth Griggs appeals from a summary judgment denying her recovery

against Amarillo Nursing Center, Inc. She had sued Amarillo Nursing to recompense

injuries allegedly suffered when falling in a grass-covered depression or hole while walking

across the grounds of the home. As a volunteer, Griggs was on her way to preach to the

home’s residents as she had in the past. Amarillo Nursing filed both a traditional and no-

evidence motion for summary judgment, which the trial court granted. Before us, Griggs
asserts that the trial court erred in 1) finding that she was a licensee, as opposed to an

invitee, and 2) sustaining the hearsay objection of the nursing home to an affidavit

supposedly establishing that the home was aware of the premises defect. We affirm the

judgment.

       Invitee/Licensee Status

       The duty owed by Amarillo Nursing to Griggs depends upon whether she was an

invitee or licensee. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Invitees are

owed the duty of reasonable care; that is, the occupier of the realty must use reasonable

care to protect invitees against dangerous conditions of which the occupier reasonably

should have known. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000);

Houston v. Northwest Village, Ltd., 113 S.W.3d 443, 446 (Tex. App.–Amarillo 2003, no

pet.). With regard to a licensee, however, the occupier need only warn about or ameliorate

dangers of which he actually knew. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709

(Tex. 2003).

       Though a volunteer, Griggs asserts that she served an economic interest or

conferred an economic benefit upon the nursing home and that made her an invitee. See

McClure v. Rich, 95 S.W.3d 620, 625 (Tex. App.–Dallas 2002, no pet.) (stating that an

invitee is one whose presence serves the possessor’s economic interest). The economic

interest or benefit mentioned by Griggs consisted of her providing a service (preaching) to

the home’s residents since the home was obligated by law to generally provide “services”

to remain in business. Assuming arguendo that one need only confer some economic




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benefit upon the occupier to become an invitee, we nonetheless find that Griggs failed to

create an issue of fact regarding the application of McClure.

       The law mentioned by Griggs appeared at 40 T.A.C. §19.702(a), and stated that the

“facility must provide for an ongoing program of activities designed to meet, in accordance

with the comprehensive assessment, the interest and physical, mental, and psychosocial

well-being of each resident.” 40 TEX . ADMIN . CODE §19.02 (2001) (Social Services and

Assistance).   What was meant by the term “activities” went undefined by both the

regulation and Griggs. Furthermore, whatever the “activities” contemplated were, their

provision was subject to the existence of a “comprehensive assessment.” In other words,

the activities must have arisen from or satisfied needs uncovered as a result of some

“comprehensive assessment.” Whether such an assessment exists here also went

unmentioned by Griggs. So too do we note the uncontradicted evidence of record

illustrating that the nursing home would have complied with both state and federal

requirements in the absence of Griggs’ voluntary efforts.

       Without any concept of what the regulators intended by the word “activities,” without

knowing whether there existed a comprehensive assessment calling for activities that

encompasses religious instruction or preaching, and given the evidence that governmental

requirements were met irrespective of Griggs’ efforts, we cannot say that a fact issue arose

regarding whether she conferred some type of economic benefit upon the home. Thus,

we reject her contention that she met the specific test espoused in McClure and created

an issue of fact.




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       Evidence of Knowledge

       Having failed to show that the trial court erred in holding her a licensee, Griggs next

argues that she presented some evidence showing that the home was actually aware of

the premises defect. That evidence came in the form of an affidavit executed by Celia

Thomas, a person who assisted with Sunday worship services. In it, Thomas related that

“a person on the staff of the nursing center said something to the effect that they were

afraid something like this was going to happen.” However, she did “not remember the

exact words and could not say who the staff person was.” Purportedly this statement was

offered to establish notice of the defect on the part of the nursing home, not to prove the

truth of what was asserted. So too could it be considered an excited utterance, she

continued.

       The applicable standard of review is one of abused discretion. McKee v. McNeir,

151 S.W.3d 268, 269 (Tex. App.–Amarillo 2004, no pet.). That is, the appellant must show

that the decision failed to comport with applicable rules and guiding principles. Trevino v.

Pemberton, 918 S.W.2d 102, 104 (Tex. App.–Amarillo 1996, no writ). Furthermore, the

purported error must be harmful before the decision can be reversed. TEX . R. APP. P. 44.1.

       Assuming arguendo that the affidavit and statement therein were not hearsay, we

nonetheless conclude that its admission would not have changed the outcome. This is so

because to impute knowledge to Amarillo Nursing, the person allegedly making the

comment had to have been an employee of that business. Stensrud v. Leading Edge

Aviation Serv. of Amarillo, Inc. 214 S.W.3d 98, 100 (Tex. App.–Amarillo 2006, no pet.).

Other than simply concluding that the unknown person was a member of the home’s



                                              4
“staff,” Griggs provided no other evidence touching upon the criteria used to determine

employee status. See id. (describing the relevant criteria). Moreover, a conclusory

statement is insufficient to raise a fact issue in a summary judgment proceeding. Ryland

Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Therefore, Thomas’ affidavit contained

no admissible evidence sufficient to impute knowledge of the alleged defect to the nursing

home.

        We overrule Griggs’ issues and affirm the summary judgment.



                                                Brian Quinn
                                                Chief Justice




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