Opinion issued August 28, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-13-00046-CV
                          ———————————
                          ANNIE EAST, Appellant
                                     V.
        SOUTHWEST CIMM’S INC. D/B/A BURGER KING #1002
             A/K/A CIMM’S INCORPORATED, Appellee


            On Appeal from the County Civil Court at Law No. 2
                          Harris County, Texas
                       Trial Court Case No. 997701


                                 OPINION

     Appellant, Annie East, challenges the trial court’s rendition of summary

judgment in favor of appellee, Southwest Cimm’s Inc., doing business as Burger

King #1002, also known as Cimm’s Incorporated (“Cimm”), on her claim against
Cimm for premises liability. In her sole issue, East contends that the trial court

erred in granting Cimm summary judgment.

      We reverse and remand.

                                  Background

      In her fourth amended petition, East alleges that on August 10, 2009, she

suffered serious injury to her hip when she slipped and fell on a “slick” substance

on the floor of Cimm’s Burger King restaurant. She sues Cimm for negligence,

alleging that it “knew or, in the exercise of ordinary care, should have known”

about the “dangerous condition” of the floor. She alleges that Cimm’s breach of its

duties proximately caused her injuries and seeks damages for medical care, pain

and suffering, and physical impairment. She further seeks exemplary damages on

the ground that Cimm’s acts or omissions “involved an extreme degree of risk.”

      Cimm answered with a general denial and moved for summary judgment,

asserting that there is no evidence to support any of the elements of East’s claim,

which sounds in premises liability and not in common-law negligence. In its

summary-judgment motion, Cimm asserted that there is no evidence that a

condition posing “an unreasonable risk of harm” existed on its property, it had

“any knowledge of a substance on the floor,” it “failed to exercise reasonable care

or . . . eliminate the risk associated with the condition,” and proximately caused

her injuries. Cimm attached to its motion an excerpt from East’s deposition, in



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which she testified that she did not know what she slipped on, but she was only

“seven or eight steps” away from the cash registers when she fell.

      In her response to Cimm’s summary-judgment motion, East argued that

Cimm had not conclusively disproved any of the elements of her claim because

material fact issues exist as to each element. East attached to her response the

affidavit of her grandson, Tommy Matthews, who testified that he was with her at

the restaurant at the time of her fall. Tommy further testified,

      This was a Burger King that was extremely dirty. The Burger King
      looked like it had not been cleaned for several days. . . . My
      grandmother went to the counter to purchase some food. The floor
      was dirty and when we entered the Burger King the floor was
      slippery. There was liquid substance on the floor that was extremely
      dirty. I was slipping on the floor myself. There were no signs
      post[ed] warning of the slippery and unclean floor. There [were] also
      no barriers blocking [the] area of the floor that was extremely
      slippery.

He explained that right after East had finished purchasing her food at the register,

he “heard a loud thump” and saw her on the floor. Tommy stated that East had

“slipped on a dirty liquid substance that was on the unclean floor,” which “was the

cause of [her] fall,” and “caused [her] to break her hip.”

      East also attached to her response the affidavit of her daughter, Jackie

Matthews, who testified that East was transported from the Burger King to a

hospital by ambulance; she visited East in the hospital immediately after the fall

and East’s doctor told her that the fall had broken East’s hip and required



                                          3
immediate surgery; and East remained in the hospital for a week after the surgery,

spent three weeks in rehabilitation, and has since been unable to walk unassisted.

Jackie further testified that when she later went to the Burger King “on the day of

the fall” to pick up East’s car, she noted that the restaurant was “extremely dirty”

inside. Jackie stated that East incurred injuries and medical expenses as a result of

her fall from the unclean and unsafe floor at the Burger King.

      After overruling Cimm’s objections to East’s summary-judgment evidence,

the trial court granted Cimm summary judgment without stating the basis for its

ruling.

                                Standard of Review

      We review the trial court’s grant of summary judgment de novo. Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on

a no-evidence summary-judgment motion, the movant must establish that there is

no evidence to support an essential element of the non-movant’s claim on which

the non-movant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i);

Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied). The burden then shifts to the non-movant to present evidence to bring

forth more than a scintilla of probative evidence to raise a genuine issue of material

fact on each of the challenged elements. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004).



                                          4
      More than a scintilla exists if the evidence offered “rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We take as true

all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubt in the non-movant’s favor. M.D. Anderson Hosp.

v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Rhone-Poulenc, Inc. v. Steel, 997

S.W.2d 217, 223 (Tex. 1999). The term “inference” means,

      [i]n the law of evidence, a truth or proposition drawn from another
      which is supposed or admitted to be true. A process of reasoning by
      which a fact or proposition sought to be established is deduced as a
      logical consequence from other facts, or a state of facts, already
      proved . . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting BLACK’S LAW DICTIONARY

700 (5th ed. 1979)). For a fact finder to infer a fact, “it must be able to deduce that

fact as a logical consequence from other proven facts.” Id. If the evidence only

creates “a mere surmise or suspicion of fact,” without more, then less than a

scintilla exists. Id.; see Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711–12 (Tex. 1997).

      Here, because the trial court’s summary judgment does not specify the

ground or grounds on which the trial court relied for its ruling, we will uphold it if

any of the grounds advanced by Cimm is meritorious. See Cincinnati Life Ins. Co.



                                          5
v. Cates, 927 S.W.2d 623, 625–26 (Tex. 1996); Weiner v. Wasson, 900 S.W.2d

316, 317 n.2 (Tex. 1995).

                                Premises Liability

       In her sole issue, East argues that the trial court erred in granting Cimm

summary judgment on her claim because she presented more than a scintilla of

probative evidence to raise a genuine issue of material fact on each of the

challenged elements of her claim, whether sounding in negligence or premises

liability.

       In her fourth amended petition, East characterizes her suit against Cimm as a

one for general negligence. Her allegations are, however, that Cimm failed to

inspect its premises and warn her of a dangerous condition that existed on its floor.

The applicable cause of action for such allegations is one of premises liability. See

Bendigo v. City of Hous., 178 S.W.3d 112, 116–17 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (holding no separate general negligence duty exists for

premises owner to exercise ordinary care to inspect for dangers on premises;

limiting evaluation of summary judgment to premises-liability claim).

       To prevail on a premises-liability claim, a plaintiff must prove that (1) the

owner had actual or constructive knowledge of some condition on the premises; (2)

the condition posed an unreasonable risk of harm; (3) the owner did not exercise

reasonable care to reduce or eliminate the unreasonable risk of harm; and (4) the



                                         6
owner’s failure to use reasonable care to reduce or eliminate the unreasonable risk

of harm proximately caused the plaintiff’s injuries. LMB, Ltd. v. Moreno, 201

S.W.3d 686, 688 (Tex. 2006); Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,

936 (Tex. 1998). In its no-evidence summary-judgment motion, Cimm separately

argued that East had no evidence of any of the essential elements of her premises-

liability claim.

Constructive Knowledge

       Actual or constructive knowledge of a premises defect is the threshold

requirement of a premises-liability claim. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d

1, 3 (Tex. 1996). A slip-and-fall plaintiff satisfies the knowledge element by

establishing that (1) the defendant placed the substance on the floor; (2) the

defendant actually knew that the substance was on the floor; or (3) it is more likely

than not that the condition existed long enough to give the premises owner a

reasonable opportunity to discover it in the exercise of ordinary care. Wal–Mart

Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

       Here, Cimm asserts that there is “absolutely no evidence that [it] had actual

or constructive knowledge of the condition” alleged or “its employees put a

substance on the floor or were aware of any substance on the floor at the time that

the incident occurred.” Cimm asserts that East testified in her deposition that she

“did not know whether the condition existed at the time of the incident.” However,



                                         7
the record reveals that East was actually asked, “Do you know what you slipped

on?” (Emphasis added.) And she merely replied, “I do not know.” East simply

stated that she did not know what substance caused her fall.

      Because East does not allege that Cimm placed the substance on the floor or

had actual knowledge of its presence, she was required to produce more than a

scintilla of evidence raising a genuine issue of material fact that “it is more likely

than not that the condition [of the floor] existed long enough to give [Cimm] a

reasonable opportunity to discover it” in the exercise of ordinary care. Id.

      In Reece, the plaintiff, after purchasing food from a Wal-Mart snack bar,

slipped and fell in a puddle of clear liquid on the floor in front of self-serve drink

machines. 81 S.W.3d at 813–14. The evidence showed that a Wal-Mart employee

had, just moments before Reece’s fall, walked past, but did not see, the puddle. Id.

at 814. Reece brought a premises-liability claim against Wal-Mart, and the trial

court rendered judgment in her favor on a jury’s verdict. Id. The court of appeals

affirmed, noting the employee’s proximity to the puddle, together with Wal-Mart’s

knowledge of the propensity for spills in that area and store policy regarding

dangerous conditions, was sufficient to establish constructive notice. Id.

      The Texas Supreme Court reversed, concluding that, notwithstanding the

employee’s proximity, there was no other evidence to support the conclusion that

Wal-Mart had constructive notice of the dangerous condition because there was no



                                          8
evidence (1) of how long the spill had existed before the plaintiff’s fall; (2) that the

spill was conspicuous (it was “not large” and “consisted of a clear liquid on a light

tile floor”); (3) that the employee saw the spill or it was there when he approached

the counter; or (4) concerning the condition of the spilled liquid that might indicate

how long it had been on the floor. Id. at 816–17.

      The court noted that “[w]hat constitutes a reasonable time for a premises

owner to discover a dangerous condition will, of course, vary depending upon the

facts and circumstances presented.” Id. at 816. And evidence that a premises-

owner’s employee was in close proximity to a dangerous condition just before an

invitee’s fall is “relevant to the analysis.” Id. Thus, the court explained that

      if the dangerous condition is conspicuous as, for example, a large
      puddle of dark liquid on a light floor would likely be, then an
      employee’s proximity to the condition might shorten the time in
      which a jury could find that the premises owner should reasonably
      have discovered it. Similarly, if an employee was in close proximity
      to a less conspicuous hazard for a continuous and significant period of
      time, that too could affect the jury’s consideration of whether the
      premises owner should have become aware of the dangerous
      condition.

Id. In either case, however, “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.” Id. at 816. This requirement

exists because, otherwise, owners would face strict liability for any dangerous

condition on their premises, an approach the court has clearly rejected.             Id.



                                           9
Nevertheless, the court appears to recognize that a situation may arise in which a

premises owner could quickly become aware of a dangerous condition and warn an

approaching invitee of the danger. And such a situation could occur in a matter of

seconds.

      Here, Tommy testified that East “slipped on a dirty liquid substance” at the

cash register after she paid for her food. (Emphasis added.) And East testified that

she was only “seven or eight steps” away from the cash register when she slipped.

Thus, there is direct evidence that Cimm’s employees were in close proximity to

the conspicuous, “extremely dirty” liquid on the floor before East fell. See Reece,

81 S.W.3d at 814.

      Tommy further testified that the slippery condition was present on the floor

from the entryway of the restaurant to the cash registers, as follows:

      The floor was dirty and when we entered the Burger King the floor
      was slippery. There was a liquid substance on the floor that was
      extremely dirty. I was slipping on the floor myself. There were no
      signs post[ed] warning of the slippery and unclean floor. There
      [were] also no barriers blocking [the] area of the floor that was
      extremely slippery.
(Emphasis added.) Tommy noted that the “Burger King . . . was extremely dirty”

and East slipped on “a dirty liquid substance that was on the unclean floor.” He

opined that the Burger King appeared as though it “had not been cleaned for

several days.” Thus, there is direct evidence that the condition of the floor was

pervasive and had been allowed to persist for “days.” See id. at 816–17.


                                         10
      We recognize that a general description of “dirtiness,” alone, does not meet

the temporal requirements of Reece. For example, in Wal-Mart Stores, Inc. v.

Gonzalez, a shopper slipped on spilled macaroni salad that was described by the

plaintiff’s daughter as having “a lot of dirt” in it along with footprints and cart

track marks. 968 S.W.2d 934, 936 (Tex. 1998). The Court held that the plaintiff’s

evidence was insufficient to establish that, more likely than not, the food had been

on the floor long enough to charge Wal-Mart with constructive knowledge. Id. at

937. When the evidence makes it equally plausible that the dangerous condition

just occurred as that it had been there a lengthier amount of time, that evidence is

insufficient to charge the premises owner with constructive knowledge. Id. at 936.

      Here, however, East is not relying solely on circumstantial evidence of the

appearance of a single, small spill to infer the length of time the spill had gone

unnoticed. Rather, East presented direct evidence that the condition of the floor

between the entry door and the cash registers was “extremely dirty,” “extremely

slippery,” and the restaurant appeared as though it “had not been cleaned for

several days.” See H.E. Butt Grocery Co. v. Heaton, 547 S.W.2d 75, 76 (Tex. Civ.

App.—Waco 1977, no writ) (concluding testimony that “the same layer of dirt that

was on the floor” covered spilled food and floor “looked like it hadn’t been

cleaned for awhile” justified inference that food had been on floor as long as

surrounding dirt and present for prolonged period of time).



                                        11
      In sum, East presented direct evidence that she “slipped on a dirty liquid

substance” just “seven or eight steps” away from cash registers manned by Cimm’s

employees who had served her. (Emphasis added.) The slippery condition existed

on the floor from the entryway of the Burger King to the cash registers. Moreover,

Tommy opined that the Burger King was so “extremely dirty,” that it “looked like

it had not been cleaned for several days.”

      Taking as true all evidence favorable to East and indulging every reasonable

inference in her favor, as we must, we conclude that she presented more than a

scintilla of evidence from which a fact finder could reasonably infer that it is more

likely than not that the condition of the floor existed long enough to afford Cimm a

reasonable opportunity to discover it in the exercise of ordinary care, especially

given the close proximity of Cimm’s employees to the “extremely dirty

substance.”   See Reece, 81 S.W.3d at 816 (“[I]f the dangerous condition is

conspicuous as, for example, a large puddle of dark liquid on a light floor would

likely be, then an employee’s proximity to the condition might shorten the time in

which a jury could find that the premises owner should reasonably have discovered

it.”); see also Ridgway, 135 S.W.3d at 600; Gonzalez, 968 S.W.2d at 936.

Unreasonable Risk of Harm

      As to the second element, a condition poses an unreasonable risk of harm for

premises-defect purposes when there is a “sufficient probability of a harmful event



                                         12
occurring that a reasonably prudent person would have foreseen it or some similar

event as likely to happen.” Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.

2002). Foreseeability in this context “does not require that the exact sequence of

events that produced an injury be foreseeable.” Id. Instead, only the general

damage must be foreseeable. Id.

      Whether a particular condition poses an unreasonable risk of harm is

generally fact specific:

          It is important to note that reasonableness determinations such as
          the one here are fact-intensive inquiries and, as such, are issues
          well-suited for a jury’s determination. Indeed, as the Texas
          Supreme Court commented in one of the cases cited by appellant,
          there is no definitive, objective test that may be applied to
          determine whether a specific condition presents an unreasonable
          risk of harm.

Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 646 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

      Here, East’s summary-judgment evidence establishes that she slipped and

was injured on “a dirty liquid substance that was on the unclean floor” at Cimm’s

Burger King, the restaurant was “extremely dirty” overall, and “looked like it had

not been cleaned for several days.” The exact sequence of events is not in dispute.

“A foreign substance on a floor can be an unreasonably dangerous condition.”

Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 672 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied).



                                          13
      Taking as true all evidence favorable to East and indulging every reasonable

inference in her favor, as we must, we conclude that East presented more than a

scintilla of evidence raising a genuine issue of material fact as to whether the dirty,

liquid substance on the floor constituted an unreasonably dangerous condition. See

id.; Brown, 80 S.W.3d at 556; see also Ridgway, 135 S.W.3d at 600; Gonzalez, 968

S.W.2d at 936.

Failure to Exercise Reasonable Care

      As to the third element, the duty to use ordinary care toward invitees

includes the duty to inspect the premises, and a premises owner is charged with

constructive knowledge of any premises defect or other dangerous condition that a

reasonably careful inspection would have revealed. See CMH Homes, Inc. v.

Daenen, 15 S.W.3d 97, 101 (Tex. 2000); Corbin v. Safeway Stores, Inc., 648

S.W.2d 292, 295 (Tex. 1983). When a premises owner has notice of a condition

on the premises that poses an unreasonable risk of harm, he has a duty to take

whatever action is reasonably prudent under the circumstances to reduce or

eliminate the unreasonable risk.      Corbin, 648 S.W.2d at 295.          A defendant

breaches its duty of care if it fails to exercise ordinary care to protect the plaintiff

from danger by failing to adequately warn of the condition and make the condition

reasonably safe. See Reece, 81 S.W.3d at 814; CMH Homes, 15 S.W.3d at 101.




                                          14
      Here, Tommy testified that “[t]here were no signs post[ed] warning of the

slippery and unclean floor” and there were “no barriers blocking [the] area of the

floor that was extremely slippery.” See Pipkin, 383 S.W.3d at 672.

      Taking as true all evidence favorable to East and indulging every reasonable

inference in her favor, as we must, we conclude that East presented more than a

scintilla of evidence raising a genuine issue of material fact that Cimm failed to

exercise reasonable care to protect East from danger by failing to adequately warn

her of the condition and make the condition reasonably safe. See Ridgway, 135

S.W.3d at 600; Gonzalez, 968 S.W.2d at 936.

Proximate Cause

      Finally, to prevail on a premises-liability claim, an invitee must establish

that the defendant’s lack of care proximately caused her injuries. Hall, 177 S.W.3d

at 647.    The components of proximate cause are (1) cause-in-fact and (2)

foreseeability.   Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).               A

defendant’s negligence is a cause-in-fact of the plaintiff’s injuries if the negligent

act or omission constituted a “substantial factor” in bringing about the injury,

without which the harm would not have occurred. Hall, 177 S.W.3d at 648 (citing

Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 477 (Tex. 1995)).

Foreseeability “means that the actor, as a person of ordinary intelligence, should

have anticipated the dangers that his negligent act created for others.”           Id.



                                         15
Foreseeability does not require that a person anticipate the precise manner in which

an injury will occur once he has created a dangerous situation through his

negligence. Id. It requires only that the general danger, not the exact sequence of

events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375,

377 (Tex. 1996).

      In its summary-judgment motion, Cimm asserted that “there is no evidence

that [it] placed the substance on the floor on the date of the incident or that the

floor was wet at the time of the incident.”

      However, East presented Tommy’s testimony that she did in fact slip “on a

dirty liquid substance that was on the unclean floor” at Cimm’s Burger King

restaurant, which “was the cause of [her] fall” and “caused [her] to break her hip.”

Jackie testified that East was transported from the Burger King to a hospital by

ambulance; East’s doctor told Jackie that East suffered from a broken hip due to

the fall and she required immediate surgery; and East remained in the hospital for

one week after the surgery, spent three weeks in rehabilitation, and has since been

unable to walk unassisted. Jackie further testified that East “incurred injuries and

medical expenses as a result of her fall from the unclean and unsafe floor.”

      Taking as true all evidence favorable to East and indulging every reasonable

inference in her favor, as we must, we conclude that East presented more than a

scintilla of evidence raising a genuine issue of material fact on whether Cimm’s



                                          16
acts constituted substantial factors in bringing about East’s injuries and whether the

general danger posed to East and the general character of her injury should have

been reasonably anticipated by Cimm.          See Ridgway, 135 S.W.3d at 600;

Gonzalez, 968 S.W.2d at 936.

                                    Conclusion

      Having concluded that East presented some evidence on each of the

challenged elements of her premises-liability claim, we hold that the trial court

erred in granting Cimm summary judgment and sustain her sole issue. We reverse

the judgment of the trial court and remand the case for further proceedings not

inconsistent with this opinion.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, dissenting.




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