John Martin v. The State of Texas--Appeal from 252nd District Court of Jefferson County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2007 » John Martin v. The State of Texas--Appeal from 252nd District Court of Jefferson County

State: Texas

Court: Texas Northern District Court

Docket No: 09-04-00450-CR

Case Date: 05/16/2007

Plaintiff: Charles Bass

Defendant: The State of Texas--Appeal from 3rd District Court of Anderson County

Preview:Lori Tucker v. Cajun Operating Company, individually
and d/b/a Church's Fried Chicken--Appeal from 142nd
District Court of Midland County
Opinion filed March 27, 2008
Opinion filed March 27, 2008
In The
Eleventh Court of Appeals
No. 11-07-00026-CV
LORI TUCKER, Appellant
V.
CAJUN OPERATING COMPANY, INDIVIDUALLY AND
D/B/A CHURCH=S FRIED CHICKEN, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CV-45441
M E M O R A N D U M O P I N I O N
Lori Tucker filed suit against Cajun Operating Company, individually and d/b/a Church=s Fried Chicken alleging a
premises liability claim for personal injuries she sustained when she slipped and fell. The trial court granted Church=s
motion for summary judgment and entered a take-nothing judgment against Tucker. We affirm.
I.Background Facts
Tucker alleged that she and her family were eating at Church=s when she slipped and fell. Tucker alleged that her fall
was caused by a wet and slippery floor and that this condition constituted a premises defect. Church=s filed a
combination traditional and no-evidence motion for summary judgment. Church=s argued that it had no liability as a
matter of law because Tucker was warned that the floor was wet and slippery. The trial court granted Church=s motion
without specifying whether it was granting the no-evidence or traditional motion.
II. Standard of Review
Tucker argues that a fact question exists on whether she was adequately warned. We will apply the well-recognized
standards of review for summary judgments. No-evidence motions are reviewed under the same standard as a directed
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verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we review the evidence in
the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id. A trial court must
grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of
probative evidence to raise a genuine issue of material fact on the challenged element of the claim. Tex. R. Civ. P.
166a(i).
For traditional motions, questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep=t of Transp., 999 S.W.2d
881 (Tex. App.CAustin 1999, pet. denied). To determine if a fact question exists, we must consider whether reasonable
and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We must consider all the evidence in the light most favorable to the
nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved
that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).
III.Analysis
A. Evidence.
Tucker=s brief refers to testimony from her affidavit. Church=s objects to our consideration of that affidavit because it
is not in the clerk=s record, although it is in Tucker=s appendix. Church=s objection is well-taken. Our review is
limited to those matters expressly presented to the trial court. Id. at 678. Tucker=s affidavit is not in the clerk=s record,
and there is no reference to it in her response to Church=s motion for summary judgment. Consequently, we cannot
consider it.
B. Warning.
The parties agree that Tucker was an invitee. Businesses such as Church=s have a duty of ordinary care to keep their
premises in a reasonably safe condition for invitees. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983).
To prevail on a premises liability claim, Tucker must prove (1) that Church=s had actual or constructive knowledge of
some condition on the premises, (2) that the condition posed an unreasonable risk of harm, (3) that Church=s did not
exercise reasonable care to reduce or eliminate the risk, and (4) that Church=s failure to use reasonable care
proximately caused her injuries. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). The obligation to reduce or
eliminate the risk can be achieved either by warning or by making the condition safe. State v. Williams, 940 S.W.2d
583, 584 (Tex. 1996).
Tucker testified in her deposition that Church=s had a yellow caution sign close to the trash and that she had to walk
around the sign when she entered the restaurant. Tucker was given a picture of the restaurant and was asked to place
an AS@ in the spot where the sign had been. She marked a location that was approximately halfway between the front
door and the counter. She also testified that she Asaw that sign there and [she] knew they had just mopped and it was
wet.@[1]
Tucker=s testimony establishes as a matter of law that Church=s warned her of the dangerous condition. By warning
her, Church=s discharged its duty as a matter of law. Bill=s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex.
App.CHouston [14th Dist.] 2002, pet. denied). The trial court, therefore, did not err by granting Church=s motion for
summary judgment. Tucker=s sole issue on appeal is overruled.
IV. Holding
The judgment of the trial court is affirmed.
March 27, 2008 RICK STRANGE
Panel consists of: Wright, C.J., JUSTICE
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McCall, J., and Strange, J.
[1]We appreciate that Tucker=s knowledge bears on her own negligence and not Church=s duty. See Parker v.
Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. 1978). For that reason we have disregarded Tucker=s testimony that
she saw her husband slip in the same area where she subsequently fell. But we have referenced this one statement
because it confirms that she saw and understood Church=s warning.
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