Farrar v. Sabine Mgmt. Corp.

• Decision Date: 11 August 2011
• Docket Number: No. 01–09–00492–CV.,01–09–00492–CV.
• Parties: Thomas FARRAR, Appellant, v. SABINE MANAGEMENT CORPORATION a/k/a Sabine Properties Management, Inc. and Northwest Building, Ltd., Appellees.
• Court: Texas Court of Appeals

362 S.W.3d 694

Thomas FARRAR, Appellant,

v.SABINE MANAGEMENT CORPORATION a/k/a Sabine Properties Management, Inc. and Northwest Building, Ltd., Appellees.

No. 01–09–00492–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 11, 2011.Rehearing En Banc Overruled

Oct. 31, 2011.

Loren G. Klitsas, Jeanine Elaine Holoye, Klitsas & Vercher, P.C., Timothy A. Hootman, Houston, TX, for Appellant.

J. Preston Wrotenbery, David Klosterboer & Associates, Ruth E. Piller, Hays, McConn, Rice & Pickering, P.C., Houston, TX, for Appellees.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

Appellant Thomas Farrar challenges the no-evidence summary judgment rendered in favor of appellees Sabine Management Corporation a/k/a Sabine Properties Management, Inc. (“Sabine”) and Northwest Building, Inc. (“Northwest”). Farrar, a postal worker, sued Sabine and Northwest after he slipped and fell while delivering mail at one of their properties. In his sole issue, he contends that the trial court erred in granting the motion because the evidence raised a genuine question of material fact as to each element of his claim.

We reverse and remand for further proceedings.

Background

Sabine and Northwest were responsible for the day-to-day management and maintenance of an office building located at 13111 Northwest Freeway in Houston, Texas. Sabine employed property manager Lori Marshall and maintenance engineer Terry Elkins to conduct daily property-safety inspections and routine maintenance. Marshall hired a company called ACI to evaluate the facility's compliance with the Americans with Disabilities Act (“ADA”). Based on ACI's recommendations, Marshall or her employees would make improvements to the building to comply with the ADA. Farrar, a United States postal worker, routinely made deliveries to the building. In the normal course of a delivery, he would park his postal truck, load mail onto a dolly, and wheel the dolly up a wheelchair ramp located near the southeast entrance to the building.

Approximately three weeks before Farrar's fall, ACI instructed Marshall to paint the wheelchair ramp located near the building's southeast entrance with a contrasting color to make it more visible. Marshall purchased “safety paint” from a hardware store. The store employees advised Marshall that she should mix sand or gravel with the paint before painting the outdoor surface to create traction and prevent slipping. Marshall mixed some sand in with the paint and proceeded to paint the wheelchair ramp a contrasting color. After the paint dried, she tested the slipperiness of the ramp by walking on it. Likewise, Elkins had several opportunities to walk up and down the ramp after Marshall painted it, but neither Marshall nor Elkins could recall a specific time when they walked on the ramp when it was wet from rain or other precipitation.

Around 10:00 a.m. on a drizzly day in March 2004, Farrar was making a special delivery to the building. He parked his postal truck and walked toward the southeast entrance carrying a single package and a hand-held scanning device. As he was walking up the wheelchair ramp, he slipped and fell, hitting his head on the ground and injuring his shoulder. He lay on the ground for several minutes but was eventually able to get up. He noticed that his clothing was damp, but he did not immediately complain about any pain or injuries. Farrar picked up the package and his scanner and walked inside the building. He told Marshall that he had slipped and fallen on the wheelchair ramp, and she told him that earlier that morning, a man checking the building's fire alarm system had also slipped on the ramp. After talking with Marshall for several minutes, Farrar delivered the package he was carrying and left the building.

Following the incident, Farrar returned to the postal station and completed an accident form. He met with a supervisor who confirmed that he was wearing slip-resistant postal shoes and sent him to a medical clinic. The supervisor also sent someone to investigate the incident. The post office investigator returned to the building and photographed the area where Farrar had fallen. The photographs showed that the ramp had been barricaded on the day of the incident, and Farrar stated that when he returned to work almost two weeks later the ramp was still barricaded and its surface had been covered with sand. Marshall and Elkins stated that the ramp was later repainted and that more sand was added to the paint mixture in order to prevent subsequent falls.

After the fall, Farrar complained of pain in his lower back and left shoulder. He sued Sabine and Northwest for premises liability. Sabine and Northwest filed a no-evidence motion for summary judgment, to which Farrar filed a response. Farrar attached to his first response a portion of Marshall's deposition testimony, his own sworn affidavit, and an accident form completed by Marshall. Sabine and Northwest filed an amended no-evidence motion, arguing that they were entitled to summary judgment because Farrar could offer no evidence to prove (1) that Sabine and Northwest had actual or constructive knowledge of a harmful condition on the premises; (2) that the condition posed an unreasonable risk of harm, (3) that Sabine and Northwest failed to exercise reasonable care; or (4) that Sabine and Northwest's negligence was the proximate cause of Farrar's injuries.

Farrar filed a response to the amended motion in which he argued that there was enough evidence to raise a genuine issue of material fact as to each of the challenged elements. He attached transcripts from Marshall's and Elkins' depositions, as well as a transcript from his own deposition to his response. Sabine and Northwest did not object to any of the attached deposition testimony. After considering all the evidence, the trial court granted Sabine and Northwest's motion. On appeal, Farrar argues that the trial court erred in granting summary judgment because he raised an issue of material fact as to each of the challenged elements.

Analysis

We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A no-evidence motion for summary judgment is essentially a pre-trial directed verdict, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is improper if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes, Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex.2003). “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.” Forbes, 124 S.W.3d at 172. “More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions.” Id. As with a traditional summary judgment, we view the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Chapman, 118 S.W.3d at 751.

In this case, Farrar argues that the trial court erred in granting Sabine and Northwest's no-evidence motion for summary judgment because his response and the attached deposition testimony raised a question of material fact as to each of the challenged elements of his claim. Sabine and Northwest argue that the motion was properly granted because Farrar failed to offer more than a scintilla of relevant evidence to establish a claim for premises liability.

It is undisputed that Farrar was Sabine and Northwest's invitee. Accordingly, to recover damages for premises liability, Farrar must establish that the premises owner-operator had actual or constructive knowledge of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused his injuries. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex.2007). The standard of care required of the owner-operator toward its invitees is the ordinary care that a reasonably prudent person would exercise under the same or similar circumstances. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). While a premises owner-operator is not an insurer of its invitees' safety, it must protect invitees from conditions on the property that present an unreasonable risk of harm. Brinson Ford, 228 S.W.3d at 163 (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000)). As such, Sabine and Northwest owed Farrar a duty to exercise reasonable care to protect him from known or reasonably discoverable dangerous conditions on the property. See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998).

1. Actual or constructive knowledge

Sabine and Northwest argue that Farrar presented no evidence that they had actual or constructive knowledge of a dangerous condition on the property and that there is no evidence of any prior incident that occurred on the painted wheelchair ramp surface. In his response, Farrar argued that there was evidence that Sabine and Northwest and its agents, Marshall and Elkins, knew or should have known that the painted wheelchair ramp was slippery when wet from rain or other precipitation. Farrar argued that Marshall knew that the paint needed to be mixed with gravel or sand in order to give the painted...