Pipkin v. Kroger Tex. L.P.

• Decision Date: 22 October 2012
• Docket Number: No. 14–11–00755–CV.,14–11–00755–CV.
• Citation: 383 S.W.3d 655
• Parties: Roy PIPKIN, Executor of the Estate on behalf of Bayon Shea Pipkin, Appellant, v. KROGER TEXAS L.P., Appellee.
• Court: Texas Court of Appeals

383 S.W.3d 655

Roy PIPKIN, Executor of the Estate on behalf of Bayon Shea Pipkin, Appellant,

v.KROGER TEXAS L.P., Appellee.

No. 14–11–00755–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Sept. 6, 2012.

Rehearing Overruled Oct. 22, 2012.

Willie D. Powells, Houston, TX, for appellant.

Gregory Edwards, Neal David Kieval, Evelyn Ailts Derrington, Brock C. Akers, Houston, TX, for appellee.

Panel consists of Justices FROST, McCALLY, and MIRABAL.^*

MAJORITY OPINION

SHARON McCALLY, Justice.

Appellant, Roy Pipkin Executor of the Estate on Behalf of Bayon Shea Pipkin (the Estate), appeals the summary judgment granted in favor of appellee, Kroger Texas, L.P., on the Estate's premises liability claim.¹ We reverse and remand.

I. Background

On January 10, 2009, Bayon Shea Pipkin was shopping at a Kroger store with his minor son, Roman Pipkin, when he slipped and fell. On March 3, 2010, Shea Pipkin sued Kroger for premises liability, alleging that he had suffered a broken hip requiring surgery, and injuries to his head, neck, shoulder, leg, and spine. Shea Pipkin died of an unrelated medical condition on April 30, 2010, and his father, Roy Pipkin, became executor of the Estate.

On March 8, 2011, Kroger filed traditional and no-evidence motions for summary judgment. In its no-evidence motion for summary judgment, Kroger asserted that there was no evidence that (1) there was an unreasonably dangerous condition; (2) Kroger had actual or constructive notice of a condition; and (3) Kroger failed to reduce or eliminate the risk posed by a recently cleaned floor. In its traditional motion for summary judgment, Kroger contended that it had warned of the potential condition by placing the caution sign in a place where anyone could see it, and Kroger rendered the condition safe by cleaning the floor. Attached to Kroger's motion was the affidavit of its employee, Hamid Said, in which he stated, in relevant part:

I was the clerk who cleaned aisle 19 before Mr. Pipkin ever fell, and I am the one who cleaned up a few pieces of ice that had fallen on the floor. I placed a caution sign at the specific location of the spill to warn others of potential hazards. After I cleaned the area, I left the caution sign in place as I always do and returned to my duties.

I did not witness Mr. Pipkin fall, but did see him just after the fall. I noticed that my previously placed caution sign was just a few feet from him as he was kneeling on the floor. I would say the caution sign was less than five feet from Mr. Pipkin.

Before [Mr.] Pipkin's fall, I had completely cleaned up the area, and I had no notice or suggestion that any slippery substance still existed on the floor after it was cleaned and there was no reason to suspect that any condition existed in this area. It is hard to imagine how a careful customer would slip under these circumstances.

On April 4, 2011, the Estate filed a response to Kroger's no-evidence summary judgment, complaining that the motion (1) was prematurely filed before an adequate time for discovery had elapsed; and (2) actually demonstrated that genuine fact issues exist on each element of the Estate's cause of action. The Estate did not respond to Kroger's traditional motion for summary judgment. Attached to the Estate's response to the no-evidence motion were Hamid Said's affidavit and the affidavit of Roy Pipkin, in which he stated:

Our son Shea was gainfully employed at SouthPark Funeral Home at the time of his accident. He had no physical condition that would have caused him to fall. He had never had a slip and fall claim before or ever broken his hip before.

I was told by my son Shea that he slipped and fell on a wet floor in Kroger and that [there] was no “wet floor” sign or caution cones displayed. They were apologetic for the wet floor.

Shea was a careful and considerate young man, he was not clumsy. He was athletic and in good health. We believe that his fall was due to Kroger's floor being left wet and their failure to timely and adequately clean it up or at least put out a sign or cone to warn of the floor being wet. We went to the hospital and witnessed the pain and suffering this accident and the required surgery caused him for many months.

On April 8, 2011, Kroger filed its reply to the Estate's response. Kroger objected to Roy Pipkin's affidavit, arguing that the affidavit should be stricken because it violated the Dead Man's Rule found in Rule 601(b) of the Texas Rules of Evidence. SeeTex.R. Evid. 601(b). Kroger also objected that the affidavit contained impermissible factual conclusions that were not supported by facts, and also contained impermissible hearsay evidence. Kroger further pointed out that the Estate's response did not address the traditional motion for summary judgment, but merely concluded that Hamid Said's affidavit created fact issues.

On May 10, 2011, the Estate filed a response to Kroger's no-evidence and traditional motions for summary judgment, attaching the first page of a four-page Kroger Customer Incident Report, in additionto Hamid Said's affidavit and Roy Pipkin's affidavit.

On May 11, 2011, Kroger filed its objections to the Estate's response and summary judgment evidence, arguing that the Estate did not file its response and evidence at least seven days before the summary judgment hearing, and neither sought leave nor had the trial court's permission to late file the response and evidence. The summary judgment hearing was held on May 11, 2011. ²

At the May 11, 2011 hearing, the trial court stated that the Dead Man's Rule was probably “the biggest hurdle,” and asked the Estate's attorney, “do you have other evidence or do you anticipate you'll be able to get other evidence that the condition at the time was such that they didn't have—that the deceased didn't have adequate warning that there was an unsafe condition?” The Estate's attorney responded that he could corroborate Roy Pipkin's affidavit with the testimony of Shea Pipkin's son, who was at the store with him on the day of the accident. The Estate's attorney explained that he had not presented evidence from the deceased's son because he “was having difficulty working with the executor of the estate, as there was a lot going on after the death of Mr. Pipkin.” Assuming that the Estate was not able to present any corroborating evidence, the Estate's attorney stated that “[u]nless there were any other facts, Your Honor, we would have to then concede under that circumstance” that the Estate probably would not be able to proceed with the case.

The trial court stated that it would give the Estate's attorney additional time to supplement the summary judgment evidence with an affidavit from Shea Pipkin's son that there was no warning sign, and that the court would “take that into consideration before ruling on the summary judgment.” The trial court further stated:

As it stands now, the Court's inclined to grant the motion for summary judgment because I don't think you've provided any, anything that creates a fact issue in this case and, frankly, you've had enough time to secure this testimony. But since you are representing to this Court that this testimony existed, that you have had difficulties with your client because of what you seem to imply is a mental capacity or a deterioration of his ability to function, then I'll give you additional time.

So I'll hold the ruling on this in abeyance for a week. You'll be allowed to provide the supplement. You can put that in the form of the motion to supplement the summary judgment evidence. I'll give you an opportunity to respond to the affidavit, in the event that you feel it doesn't meet the requisite form, doesn't create a fact issue, notwithstanding. This is kind of a last chance.

* * *

It's in open court on the record. You'll have until next Monday to supplement.

On May 16, 2011, the Estate filed a second amended response to the no-evidence and traditional motions for summary judgment, attaching, in addition to the previously filed summary judgment evidence, all four pages of the Kroger Customer Incident Report and the affidavit of Shea Pipkin's minor son, Roman Pipkin, who stated:

I am the affiant and my name is Roman Pipkin, I am accompanied by my Mother Julie Pipkin who is over the age of eighteen and is competent. I Roman Pipkin, am of sound mind, and personally acquainted with the facts herein, and I am capable of making this affidavit.

I was present at the Kroger, prudently shopping with my father Bayon Shea Pipkin at the time of the slip and fall. There was water on the floor, and my father slipped and fell because of the wet floor. There was no caution “wet floor sign” displayed. My dad was seriously injured and he had to go to the hospital due to this injury. My dad's hip bone broke as a result of this slip and fall.

Although the second amended response bears a file stamp showing that it was filed on May 16, 2011, the district clerk returned it to the Estate's attorney because it was not electronically filed pursuant to the 129th District Court's standing order requiring that, as of March 1, 2010, all documents not electronically filed would be returned to the filing party.

On May 18, 2011, Kroger filed objections to the affidavit of Roman—a twelve-year-old minor—on the grounds that he was incompetent to provide an affidavit, he did not have personal knowledge of the subjects about which he testified, and the affidavit made impermissible factual and legal conclusions. Kroger also complained that the Estate still had not filed a motion for leave and had not obtained the trial court's written permission to late file the affidavit.

On June 15, 2011, the trial court signed the order granting Kroger's motion for final summary judgment, without specifying whether it was granting on the traditional or no-evidence motion or the grounds.

On June 28, 2011, the Estate electronically filed its second amended response to Kroger's traditional and no-evidence motions for...