                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-238-CV


RYAN ESQUIVEL                                                     APPELLANT

                                            V.

JPM REALTY PROPERTY                                               APPELLEES
MANAGEMENT, INC. AND
JPM REALTY INVESTMENTS, INC.

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            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. Introduction

      In two issues, Appellant Ryan Esquivel appeals the trial court’s grant of

summary judgment for Appellees JPM Realty Property Management, Inc. and JPM

Realty Investments, Inc. (collectively “JPM”). W e affirm.




      1
           See Tex. R. App. P. 47.4.
                           II. Procedural Background

      Esquivel sued JPM, Avery Pointe apartment complex’s management firm, for

premises liability after he was injured in Avery Pointe’s pool area—to wit, while a

guest in the pool area, the “seat slab” of a concrete bench fell on his hand. Among

other grounds, JPM moved for summary judgment on the ground that there was no

evidence that it knew of the allegedly dangerous condition. Esquivel attached the

following to support his response: his deposition; the affidavit of Jack Shatley, one

of the owners of Tex-Art Stone, Inc., which manufactured and installed the concrete

bench; the deposition of Ljudmilla Corral, an Avery Pointe tenant; photographs of the

pool area and the bench; and the affidavit of Edward Esquivel, his father. 2 The trial

court granted summary judgment for JPM.

                             III. Summary Judgment

      In two issues, Esquivel complains that he produced more than a scintilla of

probative evidence in response to JPM’s summary judgment grounds and that his

comparative negligence is a fact question for the jury that precludes summary

judgment.

A. 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


      2
         JPM also attached Esquivel’s and Corral’s depositions and the Shatley
affidavit to its motion.

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there is no evidence to support an essential element of the nonmovant’s claim. Tex.

R. Civ. P. 166a(i). The motion must specifically state the elements for which there

is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310 (Tex. 2009).

The trial court must grant the motion unless the nonmovant produces summary

judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P.

166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).

      W hen 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. Sudan v. Sudan, 199

S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. Wilson, 168

S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006)). 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. Smith v.

O’Donnell, 288 S.W .3d 417, 424 (Tex. 2009).




                                          3
      The trial court did not specify any grounds in its final judgment. 3 W hen a trial

court’s order granting summary judgment does not specify the ground or grounds

relied on for its ruling, summary judgment will be affirmed on appeal if any of the

theories presented to the trial court and preserved for appellate review are

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 216 (Tex.

2003); Star-Telegram, Inc. v. Doe, 915 S.W .2d 471, 473 (Tex. 1995).

B. Premises Liability

      To succeed on a premises liability claim, an invitee must prove that (1) a

condition of the premises created an unreasonable risk of harm to the invitee; (2)

the owner knew or reasonably should have known of the condition; (3) the owner

failed to exercise ordinary care to protect the invitee from danger; and (4) the

owner’s failure was a proximate cause of injury to the invitee. Fort Brown Villas III

Condo. Ass’n, Inc. v. Gillenwater, 285 S.W .3d 879, 883 (Tex. 2009). If the owner or

occupier did not create the condition, it must have existed long enough for the owner

or occupier to have a reasonable opportunity to discover it—the “temporal element”

of premises liability. See Wal-Mart Stores, Inc. v. Reece, 81 S.W .3d 812, 814 (Tex.

2002); see also Hunnicutt v. Dallas/Fort Worth Int’l Airport Bd., No. 02-08-00297-CV,

      3
        The trial court issued a letter ruling prior to issuing its judgment, stating,
      I have completed my review of plaintiff’s evidence in response to
      defendants’ “no-evidence” motion for summary judgment and find that
      there is (1) no evidence of a dangerous condition and (2) no evidence
      that the owner-occupier of the premises had actual or constructive
      knowledge of a dangerous condition; therefore, defendants’ motion for
      summary judgment is granted.

                                          4
2009 W L 2356858, at *2 (Tex. App.—Fort W orth July 30, 2009, pet. denied) (mem.

op.) (“‘[T]here 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.’”).

C. Summary Judgment Evidence

      No one disputes that Esquivel was an invitee or that his injury involved a large

concrete bench comprised of a curved seat supported by two pedestals.

Photographs reveal that this bench and two others of the same design were grouped

around a table in the Avery Pointe swimming pool area.

      1. Esquivel’s Deposition

      Esquivel testified that on July 31, 2005, he and two other teenagers, one of

whom was an Avery Pointe tenant, spent around two hours in the pool area where

the bench was located. An eight- or nine-year-old boy and his mother were there at

the same time—the boy had a “water noodle” that he used to hit Esquivel. Esquivel

stated that he and the others did not run in the pool area; he also testified, “I did not

run at—directly at the bench.” W hen he decided to get out of the pool, “the boy

followed me, you know, hitting me repeatedly [with the water noodle] and I

approached the bench and I told the boy, okay, that’s enough. And I attempt[ed] to

sit down on the bench, but next thing I know that happened, it just collapsed and

past that I don’t really remember much.” As soon as he made contact with the

bench, it collapsed onto his right hand.


                                           5
      Esquivel claimed that his father inspected the other benches on the day of the

accident and told him “that they [the seats] did not come off like this one did” and

“that there was some kind of adhesive on the bottom of the bench to keep it in

place.” Esquivel stated that all of the benches looked the same that day, that he had

no way of knowing that this particular bench was going to collapse, and that he did

not know if the apartment complex knew about “the allegedly dangerous condition.”

      Two photos were included with Esquivel’s deposition—when asked who took

them, he stated, “I imagine my father.” He did not know when the photos were

taken. One photo shows the top of the bench on the ground, leaning against the two

pedestals. The other shows the bench put back together and indistinguishable from

the other two benches nearby.

      2. Shatley’s Affidavit

      Shatley stated in his affidavit that he was one of the owners of Tex-Art Stone,

Inc., which manufactures and installs concrete benches. Prior to July 2005, Tex-Art

Stone manufactured and installed several concrete table and bench sets in the

Avery Pointe swimming pool area. He asserted,

      These benches were properly set up at the time of delivery. I am not
      aware of any defect in the concrete benches manufactured by Tex-Art
      Stone, Inc. that were sold to Avery Pointe. . . . In addition, on 8-13-08,
      I personally inspected the concrete benches in the swimming pool area
      at Avery Pointe and found them to be set up properly at that time.

           I have reviewed a copy of [Esquivel’s petition and his deposition].
      There has never [sic] an incident reported to Tex-Art Stone, Inc. in
      which a concrete bench seat has collapsed as described by Ryan


                                          6
      Esquivel in [his petition and deposition]. In addition, I have been
      actively employed in this industry for more than 30 years. Assuming
      that the bench in question was positioned adequately, it is my opinion
      that the bench seat could not have collapsed as described by Ryan
      Esquivel in his [deposition and petition].

      3. Corral’s Deposition

      Corral testified that she had lived at Avery Pointe since 2003. On July 31,

2005, she and her son were in the pool area when two boys 4 a couple of years older

than her son were there. Prior to the accident, her son played with them. Corral

described the playing as running and kicking each other outside of the pool,

splashing in the pool, and picking up her son and throwing him in the

water—roughhousing, essentially—“up to the point when [she] asked them to quit

playing with her son” because she did not want him to get hurt. The boys respected

her request, and she left the pool area to join some friends outside the pool area.

She could see the boys continue to run around the pool area from her vantage point

outside the pool area—they would get out of the pool and then run to jump back into

the pool. The accident occurred between thirty minutes to an hour later.

      Corral testified that she was looking at the pool from outside the pool area and

saw the boys running—the reason she was looking at the pool was because “[she]

was continuously telling them, quit running.” Esquivel slipped and then she heard



      4
         After Corral reviewed a statement from her earlier interview about the
incident, she saw that she had said that there were three teenaged boys. She said
it was possible that there were three boys instead of two—three years had passed
since the accident.

                                          7
a loud noise “[l]ike somebody fell.” She did not see the accident occur, but her son

explained to her what had happened because he had remained in the pool area

when she left. Corral testified that her son “told [her] that boys were running and the

boy, [Esquivel], he slipped.      And when he slipped his feet pushed the—the

standing—the side of the bench, he pushed in, and the top fell on his hand when he

was falling down.” W hen she arrived in the pool area, she saw Esquivel, who was

screaming, sitting on the ground and holding his hand. His feet were toward the

bench, and the top of the bench was on the ground.

      Corral subsequently gave a statement in around 2006 to someone at the

apartment manager’s office. Esquivel’s counsel produced three pages of notes from

that interview. 5 After she reviewed the interview notes, she stated that everything

but the following appeared to be correct:

      I cannot recall 100% what did I told [sic] to that gentleman. But I don’t
      believe I said the bench is unstable, because the bench is very heavy.
      And that’s—it takes really big force to knock it over. So I don’t believe
      I ever mentioned unstable bench. Or something like calling it
      hazardous. 6


      5
           The statement was included as a deposition exhibit.
      6
           The notes reflect that she stated

      that the bench is a large heavy concrete bench and she believes the
      bench to be unstable. Ms. Corral[] stated that the seat of the bench is
      not attached to the concrete legs of the bench and that upon coming
      into the pool area, she observed the seat of the bench lying on its side.

               ....


                                           8
She admitted that it was possible that she had told the interviewer that the bench

was unstable and hazardous. But she also indicated that it was possible that she

might have come up with the idea that the bench was unstable because of the

severity of Esquivel’s injury.

      Corral described the pool area as gated, with holly bushes around the inside

of the fence that did not obstruct the view from the outside. She stated that at some

point between 2003 and 2005, Avery Pointe acquired the concrete outdoor

furniture—it put up the fence and added locks to the pool gate at the same time.

She was not present when the benches were delivered or installed. Corral stated

that prior to July 2005, she had sat on the concrete benches, found them very sturdy,

and had never experienced the top of the bench slipping. She had never seen the

bench topple over from someone sitting on it, and she testified that she “had no clue

there was tape” installed on the bottom of the concrete bench.

      4. Edward Esquivel’s Affidavit and Photos

      Esquivel’s father stated in his affidavit that Esquivel’s injury occurred “as the

result of the seat ‘slab portion’ of a concrete bench falling and entrapping his right

hand.” He stated,



      Ms. Corral[] stated that she believes the bench could be a hazard, since
      the seat is not attached to the legs. However, she does not believe this
      incident would have occurred, had the boys not been running around
      the pool area. Ms. Corral[] stated that it would take a lot of force to
      knock off the seat of the bench and had the claimant not been running
      and falling, then the seat would not have come off.

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      On August 1, 2008 I went to the swimming pool area of the premises
      known as Avery Pointe at Cityview for the purpose of taking
      photographs of the concrete bench which caused the injury to my son[.]
      . . . The pictures marked Exhibits “D” and “E” are the pictures that I
      took on that day.

Exhibit “D” shows part of the top portion of the bench slightly removed from one of

its pedestals. Exhibit “E” shows the top portion of the bench completely removed

from its pedestals and leaning against them.

D. Analysis

      The supreme court affirmed a no-evidence summary judgment on the actual

or constructive knowledge ground in a recent, remarkably similar premises liability

case. Gillenwater, 285 S.W .3d at 880, 883–84. W hile lowering himself into a pool-

side chair near a condominium swimming pool, Gillenwater lost the tip of his right

finger to a broken weld on the chair’s frame. Id. at 880. He offered photographs of

the chair taken by an insurance adjuster after the injury and the deposition of Frank

Collins, the condominium manager, as evidence to support an inference that the

chair was already broken and that the broken welds were easily visible to the naked

eye prior to the accident. Id. at 883. Collins’s testimony included that it was the

condominium’s responsibility to maintain the outdoor equipment in a safe condition,

that he first became aware of the injury the day after the incident, that he had an

associate’s degree in welding, that he knew the combination of chlorine and salt

water in the air had a corrosive effect on metal chairs by the pool, and that he had

an employee inspect, wash, and clean all outdoor lounge chairs by the pool


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(including the chair at issue) six days a week. Id. Gillenwater and Collins inspected

the chair the day after the injury, and the broken weld was visible to both men and

was on the same side of the chair where Gillenwater had placed his hand; Collins

inspected the other chairs by the pool, found “hairline cracks” in those chairs, and

repaired or replaced them. Id.

      The supreme court held that the evidence only established “that Collins first

became aware of the injury and the chair’s condition the day after the injury

occurred. . . . The fact that Gillenwater’s fingertip was severed and that the chair

broke is evidence that a dangerous condition existed, but it offers no evidence as to

how long it existed.” Id. at 883–84 (emphasis added).

      Esquivel argues that he produced more than a scintilla of probative evidence

that JPM had actual or constructive knowledge of the dangerous condition of the

concrete bench. He states:

      As discussed above, the summary judgment evidence (produced by
      both parties): Esquivel’s deposition testimony, the affidavit of Edward
      Esquivel and the photographs showing the presence of the adhesive
      tape between the top of the column of the bench and the underside of
      the concrete seat slab. Additionally, Corral’s deposition testimony
      confirms that the top of the bench was heavy and that, following
      Esquivel’s injury, she saw the pillar knocked over and the top portion of
      the bench on the ground. The sheer weight of the concrete bench
      (between 200–300 lbs) and [the] existence of the adhesive tape support
      that JPM either caused the harmful condition of the bench by using the
      adhesive tape to try to secure the concrete bench, that JPM knew of the
      harmful condition of the concrete bench and negligently failed to
      remove it[,] or prove[s] the harmful condition was present for so long
      that it should have been discovered or removed in the exercise of
      reasonable care.


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      W e disagree. Like in Gillenwater, nothing in the record here shows that JPM

created, knew about, or could have discovered the dangerous condition before the

incident occurred on July 31, 2005. JPM bought the bench from Tex-Art at some

point after Corral moved to Avery Pointe in 2003 and before July 2005, and Tex-Art

installed it with at least two other benches that are represented in the photographs. 7

Shatley, the bench’s manufacturer, testified that he was not aware of any defects in

the benches that Tex-Art sold to Avery Pointe and that the benches were properly

set up when delivered. He personally inspected them three years later, on August

13, 2008, and found them to be properly set up. His affidavit did not address

whether an adhesive is used in the benches’ manufacture or assembly. Corral

testified that prior to the July 31, 2005 incident, she sat on the benches, found them

to be sturdy, had never seen anyone else sit on the bench and have it topple over,

and “had no clue there was tape” on the bottom of the concrete bench.

      Esquivel testified that all of the benches looked the same and that he had no

way of knowing that this particular bench was going to collapse. Although he

referred to “[a] type of adhesive used on the pedestal to secure the bench” as an

      7
         Contrary to Esquivel’s assertion that adhesive tape can be seen in Exhibits
“D” and “E,” the poor reproduction quality of the photographs in the record does not
reveal this feature. Nonetheless, assuming that there is adhesive tape on the bench,
or that there is some sort of adhesive as referenced in Esquivel’s deposition, it does
not follow from its mere presence either that JPM knew about it prior to July 31,
2005, or that JPM—as opposed to Tex-Art or an Avery Pointe tenant—placed it
there. Less than a scintilla of evidence exists when the evidence is so weak that it
does nothing more than create a mere surmise or suspicion of a fact. Kindred v.
Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983).

                                          12
actual defect in the bench and said that his father told him “that there was some kind

of adhesive on the bottom of the bench to keep it in place,” he did not know if the

other benches also used adhesive. Further, he testified that he did not know

whether the bench had ever fallen before, whether anyone else had ever been

injured because of the bench, or whether the apartment complex knew about “the

allegedly dangerous condition” before his injury.

      The interview notes, which reflect that Corral told the interviewer that she

thought the bench was unstable; that its seat was not attached to its legs; that when

she went into the pool area, she saw the seat lying on its side; and that it could be

a hazard since the seat was not attached to the legs, are from an interview given by

Corral after the July 31, 2005 incident. Nothing in the interviewer’s notes references

any sort of adhesive or adhesive tape on the bench at that time. Edward’s affidavit

reflects that he went to the apartment complex on August 1, 2008, three years after

the incident, and took photographs—he does not mention anything about an

adhesive or adhesive tape in his affidavit.

      On the record here, there is no evidence that JPM knew or could have

discovered before the July 31, 2005 incident that the bench was defective or that

JPM, as opposed to the manufacturer and installer, Tex-Art, or an Avery Pointe

tenant, knew about the alleged adhesive or adhesive tape or placed it there to keep

the bench seat attached to its legs. See Gillenwater, 285 S.W .3d at 883–84; see

also Parks v. State & Ale of Tex., Inc., No. 01-04-00080-CV, 2006 WL 66428, at *3


                                         13
(Tex. App.—Houston [1st Dist.] Jan. 12, 2006, pet. denied) (mem. op.) (stating, in

suit to recover for injuries sustained by restaurant patron when his chair broke, that

patron failed to direct the court to anything that would create a material fact issue

regarding whether the manager or anyone else at Steak & Ale knew or should have

known that the chair created an unreasonable risk of harm). Therefore, we overrule

Esquivel’s first issue. And because we conclude that the trial court did not err by

granting JPM’s no-evidence motion for summary judgment, we do not reach

Esquivel’s second issue on comparative negligence as a fact issue precluding

summary judgment. See Tex. R. App. P. 47.1.

                                  IV. Conclusion

      Having overruled Esquivel’s dispositive issue, we affirm the trial court’s

judgment.



                                              BOB MCCOY
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: July 1, 2010




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