Court of Appeals of Texas, Dallas.

Carmen VELASQUEZ, Appellant

v.

FIESTA MART, INC. and Sushi Nara, Inc., Appellees

No. 05–16–00813–CV

|

Opinion Filed August 21, 2017

Attorneys & Firms

Andrew B. Sommerman, Sommerman, McCaffity & Quesada, L.L.P., 3811 Turtle Creek Boulevard, Suite 1400, Dallas TX 75219, for Appellant.

B. Kyle Briscoe, Donna C. Peavler, Michael W. Stumbaugh II, The Peavler Group, 2215 Westgate Plaza, Grapevine TX 76051, Michael H. Bassett, The Bassett Firm, Two Turtle Creek Village, 3838 Oak Lawn Avenue, Suite 1300, Dallas TX 75219-4514, for Appellee.

Before Justices Fillmore, Whitehill, and Boatright

MEMORANDUM OPINION

Opinion by Justice Whitehill

*1 The plaintiff-appellant in this slip and fall case asserts three issues complaining of the trial court’s summary judgment dismissing her premises liability claims. We reverse that summary judgment and remand for further proceedings consistent with this opinion.

I. Background

Plaintiff Carmen Velasquez, a woman of diminished cognitive ability, has for years worked for defendant Fiesta Mart, Inc. bagging groceries, helping customers to their cars, and performing price checks.¹ Due to her mental capacity, she focuses intently on her work to an extent that she sometimes is unable to appreciate risks posed by her surrounding environment.

Before starting work on the day she fell, Velasquez saw on the floor water that was leaking from a sushi vendor’s cooler. She told her supervisor and the sushi counter employees about the water, and she heard the store manager instruct that the water be cleaned up and calls to a Fiesta maintenance employee to clean up the spill. Fiesta employs maintenance personnel whose responsibilities include cleaning up spills.

Ten to twenty minutes later, she was asked to do a price check on sushi and slipped and fell in water in the same location she previously saw it. (Because she was the non-movant, we infer for purposes of this opinion that the water was there for at least twenty minutes before the fall. See Valence Operating Co. v. Dorsett, 165 S.W.3d 656, 661 (Tex. 2005)).

Velasquez later sued Fiesta, asserting premises liability and gross negligence claims seeking to recover for the injuries she sustained in her fall. Although the sushi vendor is included in the appellate caption and in the caption of some of trial court pleadings, the record does not show it was ever served with a citation or appeared.

Fiesta answered and then moved for summary judgment on Velasquez’s claims. Fiesta’s asserted grounds challenging Velasquez’s premises liability claim were that:

Plaintiff cannot establish the “notice” requirement of her cause of action, insomuch as she has no evidence (1) Fiesta Mart was actually aware of any alleged hazard, (2) how long the allegedly hazardous condition existed, prior to Plaintiff’s fall; or (3) Fiesta Mart should have been aware of any alleged hazard. Further Plaintiff cannot establish the required element that Fiesta Mart owed her a duty to warn, since Plaintiff was aware of the water on the floor before her fall and, under Austin v. Kroger Texas, L.P., there is no duty to warn of a known risk.

Fiesta supported its motion with Velasquez’s live pleading, her deposition testimony, and her responses to its request for admissions. (As discussed in part II(B) below, her gross negligence claim is not part of this appeal.)

Velasquez’s response to the motion included an affidavit from Elvia Velasquez (her sister) and deposition testimony from Velasquez and Fiesta employees Cecilia Amaya, Brian Corely, and Bobby Inman.

Fiesta replied to Velasquez’s response and moved to strike her sister’s affidavit as conclusory, and containing hearsay, unqualified expert testimony, and speculation.

*2 The trial court held a hearing and, without saying why, granted final summary judgment for Fiesta on all of Velasquez’s claims. But the trial court did not rule on Fiesta’s motion to strike. Velasquez appeals the final judgment against her.

II. Analysis

A. Velasquez’s First and Second Issues: Did the trial court err by granting summary judgment against Velasquez?

1. Standard of Review

We review summary judgments de novo. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). In that review, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When, as here, the trial court does not specify the grounds for its ruling, a summary judgment must be affirmed if any of the grounds on which judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

When we review both no-evidence and traditional summary-judgment motions, we first review the no-evidence grounds. Id. If the nonmovant fails to produce more than a scintilla of evidence on the essential elements of a cause of action challenged by the no-evidence motion, there is no need to analyze the movant’s traditional grounds for summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

To prevail on a traditional summary judgment motion, however, the movant must “show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Tex. R. Civ. P. 166a(c). An issue is conclusively established “if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.” Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998).

2. Premises Liability

a. Applicable Law

An employer generally has the same premises-liability duty to its employees as other landowners have to invitees on their premises. Austin v. Kroger, 465 S.W.3d 193, 201–202 (Tex. 2015).² Specifically, in Austin v. Kroger, the supreme court concluded that employers owe their employees the duty to warn them about dangerous conditions in the work place that the employer is or should be aware of but the employee is not, or to make safe those conditions:

We conclude that (1) employers owe employees the same premises-liability duty that other landowners owe to their invitees; (2) in most cases, the landowner’s premises-liability duty is to either make safe or warn invitees of concealed dangers of which the landowner is or should be aware but the invitee is not; and (3) in most cases, a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee, and the TWCA’s waiver of defenses does not relieve a plaintiff of the burden of proving that the defendant owed a duty.

Id at 201.

b. Fiesta’s No Evidence Summary Judgment Motion

Fiesta argued in its no evidence motion that it did not owe Velasquez a duty to warn her about the water or to clean it up because Fiesta did not know nor should it have known that the water was there in the first place. The record, however, refutes Fiesta’s no evidence arguments because there was evidence that Velasquez told her supervisor about the water, which was notice to Fiesta. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992).

*3 There was also evidence that Fiesta actually called for a different employee to clean up the water before the accident happened.

Moreover, Fiesta’s appellee’s brief concedes the notice issue for purposes of this appeal.

We thus conclude that the trial court erred to the extent it granted Fiesta’s no evidence summary judgment motion.

c. Fiesta’s Traditional Summary Judgment Motion

Fiesta’s traditional summary judgment motion asserted that as a matter of law it did not owe Velasquez a duty to warn her about the water or to clean it up before she fell because her deposition testimony conclusively established that she already knew the water was there.

Velasquez, however, responds that her knowledge that the water was there twenty minutes before her accident does not conclusively establish that she was aware that the water was still there at the time she actually slipped and fell in the water. She further argues that her undisputed mental limitations raise a fact issue regarding whether she was aware of the water and the risk to her it posed at the time she fell. We agree with Velasquez for several reasons.

First, the important time frame was Velasquez’s awareness at the time she fell, not twenty minutes earlier when she reported the water to her supervisor. Given the evidence that (i) she knew it was another employee’s job to clean up the water, (ii) she heard a call for another to clean up the water, and (iii) twenty minutes had passed in the interim, a jury could reasonably find that her prior awareness of the water did not mean she was aware that it was still there twenty minutes later.

Next, her testimony about her awareness at the time she fell is ambiguous and thus inconclusive. Specifically, Velasquez testified that she saw the leaking water and alerted her supervisor to its presence “before” her fall. Indeed, she was repeatedly asked and answered that she saw the water “before” she slipped and fell in it. For example, the record contains this testimony:

Q: When did you first see the water?

A: Before I came in—before I came in and work. And I told one of my supervisor, call one of those maintenance man, maintenance thing to clean the water. They call them and they didn’t come. And then after that, I have to—she told me to get one of the paper bags—one of those sacks and clean the water. And then I didn’t even know. I tripped right there in the water things.

Q: Are you saying you saw the water and knew the water was there before you slipped and fell?

A: Yeah, but I told the supervisor to tell one of those maintenance man—to call one of those maintenance to—to get the mop and put the water and never—never came. They never came.

(emphasis added). There are additional examples of similar “before” exchanges. But they are no more clear or specific than this example.

She also said that she asked the employees at the sushi stand to clean up the water, but they did not comply:

Q: Did you see the water that you fell in prior to your fall?

A: Yeah, I did. And I told—I told one of those sushi like—those guys to call one of those guys. Never came. They call him three or four times and never came.

*4 …

Q: Was the water you fell in the same water you had seen 10 to 20 minutes before?

A: Yeah, I did.

Q: It was in the same area?

A: Yeah, I did.

(emphasis added).

Additionally, Velasquez said that, “They never came clean the water thing,” and “I went to the front end, told them to tell one of those guys to clean that water. They never call nobody there.”

But, on the other hand, she also testified that she did not see the water when she was getting the price check:

Q: Okay. Can you tell us what happened?

A: I was getting one of those food to check … the fish. She told me check the food, check the price, and I did. And after that, I didn’t see the water and I tripped right there in the water.

Q: Did you see any water by the sushi display before the fall?

A: No, no I didn’t.

…

Q: If you knew there was water there, if you had saw the water earlier, why did you walk back there and step in the water?

A: It was before I walked, before I come … I didn’t even know the water was there after … I stepped in the water and tripped like that. I didn’t even know the water was there.

Fiesta’s traditional motion relies on words like “before” and “prior to” in these and similar exchanges as showing that Velasquez knew the water was there at the time she fell. However, the word “before” does not necessarily mean the same thing as “at the time of.” Specifically, “before” means “previous to: earlier or sooner than.” WEBSTER’S UNABRIDGED DICTIONARY 187 (2001). Thus, in one sense, “before” could mean “immediately before.” Or “before” could mean at some indefinite time preceding when she fell.

But, Fiesta’s questions did not ask whether Velasquez saw the water “immediately before” she fell. For us to read her testimony that way, we would have to add the word immediately or a synonym to the record. The words “prior to” suffer the same infirmity. Accordingly, the deposition excerpts concerning her awareness “before” she fell are ambiguous. But in the summary judgment context, we must construe the evidence in Velasquez’s favor. See Southwestern Elec. Power Co., 73 S.W.3d at 215.

Moreover, her testimony about knowing that the water had not been cleaned up is similarly ambiguous as to whether she discovered that fact due to the fall. The record does not address that aspect.

When, as here, conflicting inferences may be drawn from uncontroverted summary judgment proof, there is a fact question. Cullins v. Foster, 171 S.W.3d 521, 534 (Tex. App.–Houston [14th Dist.] 2005, pet. denied). Accordingly, the trial court erred by granting summary judgment in Fiesta’s favor on Velasquez’s premises liability claim, and we sustain Velasquez’s first and second issues as they concern her premises liability claim. Given this ruling, we need not and do not address whether evidence of Velasquez’s diminished mental skills raised a fact question regarding her awareness of the water at the time she fell.

3. Gross Negligence

Velasquez’s summary judgment response did not address gross negligence, nor does she address it on appeal. Thus the no-evidence summary judgment is final regarding the gross negligence claim.

B. Velasquez’s Third Issue: The Elvia Velasquez Affidavit

*5 Velasquez included her sister’s affidavit with her summary judgment response. In essence, the affidavit says that Velasquez has lived with her sister for thirty years and has never lived independently. She has the mental skills of a third grader, is very focused on the task she is currently performing, and would not notice a puddle unless her attention was specifically drawn to it. Fiesta argued there were numerous defects in the affidavit and moved to strike it, but the trial court did not rule on the motion.

Velasquez now argues that the absence of a ruling requires us to consider the affidavit as summary judgment evidence. See Stewart v. Sanmina, 156 S.W.3d 198, 206–07 (Tex. App.–Dallas 2005, no pet.) (absent a ruling, form objections are waived on appeal). Fiesta responds that its objections to paragraphs four, six, and seven as conclusory are preserved for our review. Id. (objection that an affidavit is conclusory is reviewable even without a ruling).

But we need not determine which portions of the affidavit, if any, are competent summary judgment evidence because we previously concluded that Velasquez’s testimony raises a fact issue about whether she knew the water had not been cleaned up at the time she fell. Thus, the affidavit’s admissibility adds nothing to our analysis and resolving Velasquez’s arguments regarding that affidavit are not necessary to our disposition of this appeal. See Tex. R. App. P. 47.1. Accordingly we do not decide Velasquez’s third issue.

III. Conclusion

We reverse the trial court’s summary judgment on the premises liability claim, and remand to the trial court for further proceedings consistent with this opinion.

	Footnotes
1		Fiesta is a nonsubscriber to workers’ compensation.
2		An invitee is “one who enters the property of another with the owner’s knowledge and for the mutual benefit of both.” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996).