Harkins v. Wal-Mart Stores Tex., LLC, 02-21-00201-CV

CourtCourt of Appeals of Texas
Writing for the CourtMike Wallach Justice
PartiesTonya Gayle Harkins, Appellant v. Wal-Mart Stores Texas, LLC, d/b/a Wal-Mart Stores Texas 2007, LLC, Wal-Mart Super Center, and Wal-Mart, Appellees
Decision Date18 August 2022
Docket Number02-21-00201-CV


Tonya Gayle Harkins, Appellant

Wal-Mart Stores Texas, LLC, d/b/a Wal-Mart Stores Texas 2007, LLC, Wal-Mart Super Center, and Wal-Mart, Appellees

No. 02-21-00201-CV

Court of Appeals of Texas, Second District, Fort Worth

August 18, 2022

On Appeal from County Court at Law Hood County, Texas Trial Court No. C08035

Before Sudderth, C.J.; Wallach and Walker, JJ.



Mike Wallach Justice

After this court issued its original memorandum opinion, Appellees filed their Motion for Rehearing. Although we hereby deny the Motion for Rehearing, we withdraw our June 23, 2022 memorandum opinion and substitute this memorandum opinion for the original.

This is a personal injury case arising from Appellant Tonya Gayle Harkins' trip and fall at a Wal-Mart store in Granbury, Texas. Harkins sought to impose liability on Appellees Wal-Mart Stores Texas, LLC, d/b/a Wal-Mart Stores Texas 2007, LLC, Wal-Mart Super Center, and Wal-Mart (collectively Wal-Mart) based on premises liability and negligent activity theories. Wal-Mart filed a hybrid motion for summary judgment in which it sought a traditional summary judgment on the premises liability claim because it did not have notice of any such condition and because the alleged unreasonably dangerous condition was not concealed, thereby negating any duty to Harkins. It argued for a no-evidence summary judgment on that claim on the grounds that there was no evidence of (1) an unreasonable risk of harm; (2) knowledge of an unreasonably dangerous condition; (3) breach of duty; or (4) proximate cause. Further, Wal-Mart contended that there was no evidence that Harkins' fall was caused by a contemporaneous negligent activity, requiring dismissal of Harkins' negligent activity claim.

The trial court granted both motions without specifying the bases of its ruling and Harkins now appeals that order. Because Harkins' own arguments establish that


this is a premises defect case, we will affirm that portion of the judgment granting Wal-Mart's no-evidence motion for summary judgment regarding negligent activity. However, we will reverse the remainder of the summary judgment regarding premises liability and remand the case to the trial court for further proceedings because the evidence established the existence of fact issues.

I. Background

Harkins alleged that on December 6, 2018, she tripped and fell on a floor mat at the exit of a Wal-Mart store. Harkins filed this personal injury case against WalMart on July 30, 2019, asserting negligent activity and premises liability theories against Wal-Mart. The negligence allegations in the petition were that Wal-Mart:

(a) failed to take proper steps to ensure that the area was safe
(b) provided or allowed to exist an unreasonably dangerous path on which to walk
(c) failed to properly inspect the area in question, when it knew or should have known of the unreasonably dangerous condition
(d) failed to provide a safe common area at the premises
(e) failed to adequately warn the plaintiff that the dangerous condition existed;
(f) failed to block off or guard the area so as to prevent its invitees from using this area;
(g) failed to timely correct the dangerous condition once it was discovered;
(h) failed to exercise reasonable care, diligence, and prudence so as to protect the safety of persons on the premises.


Wal-Mart answered with a general denial and multiple affirmative defenses, including that the alleged condition was open and obvious and not concealed. WalMart then filed a traditional motion for summary judgment contending that it did not have notice of the alleged unreasonably dangerous condition and that the alleged unreasonably dangerous condition was not concealed, thereby negating any duty to Harkins. This traditional motion was combined with a no-evidence motion for summary judgment in which Wal-Mart contended that there was no evidence: (1) of an unreasonable risk of harm; (2) that it had notice of an unreasonably dangerous condition; (3) of a breach of duty; and (4) of proximate cause of injury (specifically, there was "not sufficient evidence that [Harkins'] fall was proximately caused by any action or inaction on the part of [Wal-Mart]"). Wal-Mart did not contend that there was no evidence of injury. Further, Wal-Mart argued that there was no evidence that Harkins' fall was caused by a contemporaneous activity of any of its employees, requiring dismissal of Harkins' negligence claim.

In support of its traditional motion, Wal-Mart relied upon Harkins' admission that the floor mat was open and obvious. Harkins' response was not that the floor mat itself was unreasonably dangerous but that the floor mat was unreasonably dangerous because it was prone to rolling up when in normal use, thereby causing an unreasonable risk of tripping and falling, and that risk was concealed and that WalMart did not exercise reasonable care to fix it, to warn its patrons, or to protect them against it.


Harkins' evidence in response to Wal-Mart's motions came from deposition excerpts from Lori Bernard, Wal-Mart's customer service manager, and Angela Brown, Wal-Mart's Assistant Manager; a surveillance video recording of the event and screen captures therefrom; Wal-Mart's customer incident report and customer incident video request form related to Harkins' incident; and a print out of Wal-Mart's "Floor Mat Program."

We will begin with the security video. Unlike many cases where events can only be described through the senses and memories of human witnesses, here we have an actual video recording of the events beginning an hour before the fall and ending an hour after it. The video reveals that the area in question is the entrance/exit of the Wal-Mart store. In the foreground is the inside of the store, and in the background is the outside of the store. Also visible in the foreground is a blue equipment station with a water bucket and mopping equipment and a wet-floor sign. In the background, several feet away, are automatic sliding doors on the left and right, each of which has glass appearing doors with horizontal metal bars in them. Each set of doors is split in the middle and open and close by each door moving to and from the middle of the door opening. From 5:25 p.m. to 6:25 p.m., the video shows a high volume of foot traffic with many people entering and leaving through both sets of doors, some pushing grocery carts, others not. At 5:25 p.m., the right-door side (the side in question) has a dark floor mat lying just to the exterior side of the automatic doors while the left side has a similar floor mat in the space between the automatic doors.


Between 5:25 p.m. and 6:25 p.m., the automatic doors on the left side never close, remaining continuously in the open position. The door mat on the left side moves very little from its originally viewed position between the doors.

Wal-Mart's greeter, Ronnie, repositioned the mat on the right side at 5:30 p.m. from the exterior side of the automatic doors to a position where the front few inches of the mat were directly between the automatic doors. He did this by simply using his foot to glide the mat across the floor. Between 5:30 p.m. and 5:52 p.m., the pedestrian traffic had slid the right-side mat back to the exterior side of the automatic doors. At 5:52 p.m., Ronnie again slides the mat back between the automatic doors.

Between 5:52 p.m. and 6:12 p.m., the right front portion of the mat rolled up 11 times as the automatic doors closed and rolled back flat each time the doors reopened. The rolled-up portion of the front of the mat extended from the right front corner to approximately a quarter of the way across the front of the mat. While the mat was rolling up and back out, three patrons used a foot to help the mat unroll as the doors opened. No one else appeared to have difficulty with the mat between 5:25 p.m. and 6:25 p.m., but no one appeared to have contacted the front of the mat with the toe of a shoe. Between 6:12 p.m. and 6:25 p.m., the time of the fall, the mat stopped rolling up despite the doors continuing to open and close. Between 5:30 p.m. and 6:30 p.m., Ronnie is seen in the video working in the area frequently but also out of the camera's view for periods of time. When in view, Ronnie was greeting customers, arranging baskets, moving motorized carts, cleaning, and doing other


miscellaneous tasks. However, he did not appear to be paying much direct attention to the floor mat and only moved it twice as described.

At 6:25 p.m., a man approaches the right-side doors, which are closed. They open as he approaches, and he exits without incident. Another person then approaches, pushing a basket, and exits without difficulty. Harkins then approaches. She is walking at a normal speed, but she does not pick her feet up very high as she walks, which one could reasonably describe as "foot dragging." The mat appears to be flat. Her right foot contacts the right front of the mat first. No mat movement is visible. As she moves her left foot forward, the toe of her shoe contacts the area of the mat near where the mat had stopped its rolling when the door had been rolling it up. She did not kick the mat or appear to do anything other than to move her foot forward. When her left shoe's toe contacted the mat, the mat curled back from the point where her toe contacted the mat and rolled up in a diagonal direction such that about one quarter of the left front mat curled up, resulting in Harkins' trip and fall.

The video shows that Harkins took a significant fall. She stayed on the floor for a period of time and was immediately assisted by other patrons. About 30 seconds after her fall and as Harkins was still laying on the mat, Ronnie, who was just a few feet from her, goes to check on her, and rolls the rug back flat using his foot. At 6:30 p.m., an...

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