Beulah Packwood, Individually and as Representative for Sydney Packwood v. Touchstone Communities, Inc., and Care Inn Properties, Inc.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00020-CV ______________________________ BEULAH PACKWOOD, INDIVIDUALLY AND AS REPRESENTATIVE FOR SYDNEY PACKWOOD, DECEASED, Appellant V. TOUCHSTONE COMMUNITIES, INC., AND CARE INN PROPERTIES, INC., Appellees On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 37213 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Beulah Packwood, individually and as representative for Sydney Packwood, deceased, (1) appeals the granting of the summary judgment motion of Touchstone Communities, Inc., and Care Inn Properties, Inc. (collectively Touchstone). While taking her husband, an Alzheimer's patient at the Texas State Veterans Home managed by Touchstone, for a walk, Beulah, who was eighty-five at the time of the accident, stepped off a sidewalk into a hole. Stumbling, Beulah then tripped over a sprinkler head, causing her to fall. When Beulah fell, she fractured her hip. Because Sydney had been holding Beulah's hand, Sydney fell as well, suffering a head injury. Beulah brought suit against Touchstone. To succeed in a premises liability case, a plaintiff must prove: (1) Actual or constructive knowledge of some condition on the premises by the owner/operator; (2) That the condition posed an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Pierce v. Holiday, 155 S.W.3d 676, 679 (Tex. App.--Texarkana 2005, no pet.). In its motion for summary judgment, Touchstone argued there was no evidence the conditions posed an unreasonable risk of harm or that it had actual or constructive knowledge of the conditions. On appeal, the Packwoods argue there are genuine issues of material fact concerning the danger posed by the sprinkler head and the hole and whether Touchstone had actual or constructive knowledge of the dangerous conditions. In their third point of error, the Packwoods argue it is uncontested that Touchstone did not remedy the dangerous conditions or warn the Packwoods of the danger. Because the Packwoods failed to present any evidence that Touchstone had actual or constructive knowledge concerning the hole and failed to present any evidence that the sprinkler head posed an unreasonable risk of harm, we affirm. Standard of Review Touchstone filed a motion for summary judgment claiming that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. The motion also argued there was no evidence of at least one of the elements of the Packwoods' cause of action. As such, the motion was both a traditional summary judgment motion and a no-evidence summary judgment motion. We review de novo the trial court's decision to grant a motion for summary judgment. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To prevail on a traditional motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). Summary judgment for a defendant is proper when the defendant conclusively negates at least one element of each of the plaintiff's theories of recovery or pleads or conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); see Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). A no-evidence summary judgment is essentially a pretrial directed verdict. We therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id.; Vial v. Gas Solutions, Ltd., 187 S.W.3d 220, 228 (Tex. App.--Texarkana 2006, no pet.). A no-evidence "motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); see Tex. R. Civ. P. 166a(i). A nonmovant will defeat a no-evidence summary judgment motion if the nonmovant presents more than a scintilla of probative evidence on each element of his or her claim. D.R. Partners v. Floyd, No. 06-07-00001-CV, 2007 Tex. App. LEXIS 5195 (Tex. App.--Texarkana July 5, 2007, pet. denied); Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). There Is No Evidence Touchstone Had Actual or Constructive Knowledge of the Hole The Packwoods argue there are genuine issues of material fact concerning whether the hole was a dangerous condition and whether Touchstone had actual or constructive knowledge of the hole. Under Texas law, a plaintiff can establish knowledge of a potentially harmful condition in one of three ways: (1) prove the defendant caused the harmful condition; (2) prove the defendant knew of the harmful condition and negligently failed to remove it; or (3) prove the harmful condition was present for so long that it should have been discovered or removed in the exercise of reasonable care. Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 900 (Tex. App.--Texarkana 2002, no pet.); see Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992). The Packwoods failed to present the trial court with any evidence that Touchstone had actual or constructive knowledge of the hole. It is uncontested that Touchstone did not actively create the hole and there is no evidence Touchstone had actual knowledge of the hole. The Packwoods argue that the hole was created by nature and was present for so long it should have been discovered by Touchstone if Touchstone had exercised reasonable care. Touchstone had a duty to perform reasonable inspections to find latent defects. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972); see Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Restatement (Second) of Torts § 343, cmt. b (1966). Beulah (2) testified she believed the hole was created by winter rains and snow. Her testimony is less than a scintilla of evidence. Beulah provides no explanation for how she reached this conclusion and does not testify she had observed the hole before stepping into it. Beulah's testimony concerning how the hole was created is entirely speculative and is no more than a mere surmise. There is no evidence the hole existed long enough that Touchstone should have discovered the hole. See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006). There Is No Evidence the Sprinkler Head Posed an Unreasonable Risk The Packwoods also argue the sprinkler head posed an unreasonably dangerous condition. "A condition is unreasonably dangerous if it presents an unreasonable risk of harm." Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752 (Tex. 1970). During her deposition, Beulah testified as follows: A. [Beulah] . . . [A]s we turned there, my foot went off the right side of the sidewalk into the little ditch and the -- the water sprinkler was in the ditch right beside the sidewalk and I stumbled when I raised my foot up, my foot hit the water sprinkler -- Q. [Counsel for Touchstone] Okay. A. [Beulah] -- and I went down. Beulah testified the sprinkler head kept her "from putting [her] foot back up on the sidewalk." Ron White, the administrator of the nursing home, testified the sprinkler head should be within half an inch of being flush with the ground. According to White, the sprinkler head was "maybe an inch, inch and a half above the ground" after the accident. (3) The Packwoods contend White admitted that a sprinkler head that is approximately an inch and a half above the ground would not be a safe situation. There is no more than a scintilla of evidence that the sprinkler head posed an unreasonable risk. The Packwoods argue that White's testimony of the height of the sprinkler head after the accident is some evidence of the height of the sprinkler head at the time of the accident. White admitted a height of an inch and a half was not safe, but did not admit the sprinkler head was an inch and a half above the ground before the accident. White testified he did not know what the height of the sprinkler head was before the accident. Previously, White had testified he believed the hole "was formed by [Beulah's] foot when she stepped off the sidewalk." White suggested the height of the sprinkler head relative to the surrounding ground was affected by the accident. White testified as follows: Q. [Counsel for the Packwoods] Would the position that it was in -- assuming that it had not been pushed down, would one and a half inches be an appropriate distance between the top of the sprinkler head and the ground? [Counsel for Touchstone]: Objection, form. Q. [Counsel for the Packwoods] -- been safe? A. [White] Assuming the -- no one stepped off the sidewalk and pushed the ground around it, yes. It would not be a safe situation, no. It is clear from the context of White's testimony that he was not testifying that the height of the sprinkler head was an inch and a half before the accident. Further, the mere fact that Beulah tripped is not sufficient to establish that the sprinkler head was an unreasonable risk. There is no evidence the sprinkler head posed an unreasonable risk at the time of the accident. (4) The trial court did not err in granting Touchstone's motion for summary judgment. For the reasons stated, we affirm the judgment of the trial court. Jack Carter Justice Date Submitted: July 23, 2007 Date Decided: October 5, 2007 1. When referring to the appellant as a whole, we will use "the Packwoods"; when referring to Beulah or Sydney Packwood separately, we will use their first names throughout this opinion. 2. We note that Touchstone argues that Beulah's deposition is not competent evidence because Touchstone "timely objected to some of Plaintiff's summary judgment proof." Touchstone, though, did not secure a ruling on their objections. As such, any defect of form has been waived. While Touchstone correctly notes defects of substance do not have to be preserved, Touchstone makes no attempt to identify what portions of Beulah's deposition contain defects of substance. 3. Robert Naylor, who was in charge of maintenance of the nursing home, testified the sprinkler head was about half an inch above the ground level thirty minutes after the accident. 4. We note Touchstone cites Taylor, 222 S.W.3d 406, for the proposition there is no evidence of actual or constructive knowledge that the sprinkler head posed a dangerous condition. Touchstone also briefly argues there is no evidence it did not exercise reasonable care and there is no evidence of proximate cause. It is not necessary for us to decide these arguments.