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ACCEPTED
01-18-00403-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/10/2018 2:29 PM
CHRISTOPHER PRINE
CLERK

Case No. 01-18-00403-CV

FILED IN
1st COURT OF APPEALS
In the Court of Appeals of Texas HOUSTON, TEXAS
10/10/2018 2:29:33 PM
First District CHRISTOPHER A. PRINE

___________________________________________________Clerk

Julia Marshall and Dennis Marshall

Appellants

ESA Management, LLC

Appellee
___________________________________________________

On Appeal from the

270th District Court of Harris County, Texas
Hon. Brent Gamble Presiding
Trial Court Cause No. 2016-40034

___________________________________________________

Appellants’ Brief

___________________________________________________

Brock C. Akers Rachael K. Jones
Texas Bar No. 00953250 Texas Bar No. 24090196
bca@akersfirm.com rjones@sloanfirm.com

THE AKERS FIRM, PLLC SLOAN, HATCHER, PERRY,
3401 Allen Pky, Suite 101 RUNGE, ROBERTSON & SMITH
Houston, Texas 77019 101 East Whaley Street
(713) 877-2500 (Telephone) Longview, Texas 75606
(713) 583-8662 (Facsimile) (903) 757-7000 (Telephone)
(903) 757-7574 (Facsimile)
Counsel for Appellants

Oral Argument Requested

Table of Contents

Identity of Parties and Counsel iii

Index of Authorities iv

Statement of the Case viii

Statement Regarding Oral Argument viii

Issues Presented ix

Statement of Facts 1

I. The Motel’s History of Refrigerator Leaks 1

II. Julia Marshall’s Fall and Injuries 5

Statement of Procedural History 11

Summary of the Argument 14

Argument & Authorities 16

I. Standards of Review 16

A. Traditional Summary Judgment 17

B. No-Evidence Summary Judgment 18

II. Premises Liability Claim 19

A. ESA failed to negate its liability for the unreasonably

dangerous condition actually alleged by the Marshalls—

namely, the refrigerator setup itself. 20

B. ESA had actual or constructive knowledge of an

unreasonably dangerous condition 23

– i –

1. The refrigerator setup was a known continuing hazard,

and ESA was aware that it created an unusually high
risk of harm 23

2. ESA had knowledge of the unreasonably dangerous

condition because it created the condition 35

C. ESA owed the Marshalls a duty to prevent the refrigerator

setup from causing an unreasonably dangerous condition 37

D. ESA’s failure to exercise reasonable care proximately caused

Julia Marshall’s injuries 39

1. The refrigerator setup was a cause-in-fact of

Julia Marshall’s injuries 40

2. Julia Marshall’s injuries were foreseeable 41

III. Loss of Consortium Claim 42

Conclusion and Prayer 43

Certificate of Compliance 45

Certificate of Service 46

– ii –

Identity of Parties and Counsel

APPELLANTS:

Julia Marshall and

Dennis Marshall

(the “Marshalls”)

APPELLEE:

ESA Management, LLC (“ESA”)

ATTORNEYS FOR APPELLANTS:

Brock C. Akers

THE AKERS FIRM, PLLC
3401 Allen Parkway, Suite 101 Houston, Texas 77019

Kevin Bush

SIMON LAW FIRM
5151 Katy Freeway, Suite 140 Houston, Texas 77007

Rachael K. Jones

SLOAN, HATCHER, PERRY, RUNGE, ROBERTSON & SMITH

101 East Whaley Street
Longview, Texas 75606

ATTORNEYS FOR APPELLEE:

Robert Dubose

ALEXANDER DUBOSE JEFFERSON &

TOWNSEND LLP
1844 Harvard Street
Houston, Texas 77008

Peri H. Alkas

PHELPS DUNBAR LLP
500 Dallas Street, Suite 1300
Houston, Texas 77002

– iii –

Index of Authorities

Cases

Bowman v. Brookshire Grocery Co.,

317 S.W.3d 500 (Tex. App.—Tyler 2010, pet. denied) 33

Brookshire Grocery Co. v. Taylor,

222 S.W.3d 406 (Tex. 2006) 24, 27

Browning-Ferris Indus., Inc. v. Lieck,

881 S.W.2d 288 (Tex. 1994) 43

Canas v. Centerpoint Energy Res. Corp.,

418 S.W.3d 312 (Tex. App.—Houston [14th Dist.] 2013, no pet.). 16

Casso v. Brand,

776 S.W.2d 551 (Tex. 1989) 16

City of Cameron v. Brown,

80 S.W.3d 549 (Tex. 2002) 41

City of Gladewater v. Pike,

727 S.W.2d 514 (Tex. 1987) 40, 42

City of Keller v. Wilson,

168 S.W.3d 802 (Tex. 2005) 18

City of San Antonio v. Rodriguez,

931 S.W.2d 535 (Tex. 1996) (per curiam) 24, 38-39

CMH Homes, Inc. v. Daenen,

15 S.W.3d 97 (Tex. 2000) 19, 23, 24, 39

Cohen v. Landry’s, Inc.,

442 S.W.3d 818 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
16, 18

Corbin v. Safeway Stores, Inc.,

648 S.W.2d 292 (Tex. 1983) 24-25, 33, 37, 39, 40

– iv –

Crosby v. Minyard Food Stores, Inc.,

122 S.W.3d 899 (Tex. App.—Dallas 2003, no pet.) 24, 26, 27, 33

Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472 (Tex. 1995) 39

Forbes Inc. v. Granada Biosciences Inc.,

124 S.W.3d 167 (Tex. 2003) 18

Goodyear Tire & Rubber Co. v. Mayes,

236 S.W.3d 754 (Tex. 2007) (per curiam) 17

H.E. Butt Grocery Co. v. Resendez,

988 S.W.2d 218 (Tex. 1999) 27

H.E. Butt Grocery Co. v. Rojas,

No. 13-95-387-CV, 1997 WL 33760912 (Tex. App.—Corpus Christi

Apr. 24 1997, no pet.) (not designated for publication) 26

Johnson v. Brewer & Pritchard, P.C.,

73 S.W.3d 193 (Tex. 2002) 18, 21, 22

Keetch v. Kroger Co.,

845 S.W.2d 262 (Tex. 1992) 24, 36, 37

M. Rivas Enterprises, Inc. v. Gaytan,

24 S.W.3d 402 (Tex. App.—Corpus Christi 2000, pet. denied) 23, 38

Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572 (Tex. 2006) 40

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844 (Tex. 2005) 17

Marathon Corp. v. Pitzner,

106 S.W.3d 724 (Tex. 2003) 40-41

McClure v. Allied Stores of Texas, Inc.,

608 S.W.2d 901 (Tex. 1980) 39

– v –

Motel 6, G.P., Inc. v. Lopez,

929 S.W.2d 1 (Tex. 1996) (per curiam) 19, 37

Nat’l Convenience Stores, Inc. v. Erevia,

73 S.W.3d 518 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)

24, 25-26, 33, 38

Neely v. Wilson,

418 S.W.3d 52 (Tex. 2013) 16

Nixon v. Mr. Property Management Co.,

690 S.W.2d 546 (Tex. 1985) 41-42

Palermo v. Bolivar Yacht Basin, Inc.,

84 S.W.3d 746 (Tex. App.—Houston [1st Dist.] 2002, no pet.) 16

Pipkin v. Kroger Texas, L.P.,

383 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) 37

Plainview Motels, Inc. v. Reynolds,

127 S.W.3d 21 (Tex. App.—Tyler 2003, pet. denied) 26, 33-34, 41

Ridgway v. Ford Motor Co.,

135 S.W.3d 598 (Tex. 2004) 19

Safeway Stores, Inc. v. Scamardo,

673 S.W.2d 371 (Tex. App.—Houston [1st Dist.] 1984, no writ) 33-34

Sampson v. University of Texas at Austin,

500 S.W.3d 380 (Tex. 2016) 36

Science Spectrum, Inc. v. Martinez,

941 S.W.2d 910 (Tex. 1997) 17

Seideneck v. Cal Bayreuther Assocs.,

451 S.W.2d 752 (Tex. 1970) 41

Stewart v. Wal-Mart Stores, Inc.,

120 F.3d 266 (5th Cir. 1997) 26

– vi –

Stiles v. Resolution Trust Corp.,

867 S.W.2d 24 (Tex. 1993) 16

Timpte Industries, Inc. v. Gish,

286 S.W.3d 306 (Tex. 2009) 18, 21, 22

Towers of Town Lake Condominium Ass’n, Inc. v. Rouhani,

296 S.W.3d 290 (Tex. App.—Austin 2009, pet. denied) 26, 38, 39, 40

Travis v. City of Mesquite,

830 S.W.2d 94 (Tex. 1992) 39, 40, 41

University of Texas—Pan Am. v. Aguilar,

251 S.W.3d 511 (Tex. 2008) 33

Valence Operating Co. v. Dorsett,

164 S.W.3d 665 (Tex. 2005) 16, 17

Wal-Mart Stores, Inc. v. Gonzalez,

968 S.W.2d 934 (Tex. 1998) 23

Wal-Mart Stores, Inc. v. Reece,

81 S.W.3d 812 (Tex. 2012) 36

Wilson v. Brister,

982 S.W.2d 42 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) 40

Rules

TEX. R. CIV. P. 166a …………………………………………………………………………… 17, 22

– vii –

Nature of Case:

Trial Court:

Trial Court Disposition:

Statement of the Case

The Marshalls sued ESA for personal injuries and loss of consortium, arising out of a fall suffered by Julia Marshall at an Extended Stay America motel managed by ESA, based on a theory of premises liability.1

The Honorable Brent Gamble, Presiding Judge, 270th District Court of Harris County, Texas

The trial court granted summary judgment in ESA’s favor on all of the Marshalls’ claims on May 1, 2018.2

Statement Regarding Oral Argument

Appellants respectfully request oral argument in order to emphasize and

clarify the written arguments contained herein for the purpose of aiding the Court’s

analysis and decision process. Oral argument will assist the Court in its disposition

of this appeal, as it will provide the Court with a better understanding of the factual

nuances in the application of Texas premises liability law to this case, and will enable

counsel to answer any questions that the Court may have.

1 C.R. 4-12.

2 C.R. 537.

– viii –

Issues Presented

This is a premises liability case. The Marshalls sued ESA after Julia Marshall slipped in a puddle of water that had leaked from the refrigerator in the Marshalls’ motel room. The issues on appeal are:

1. Did the trial court err in entering final summary judgment against the Marshalls, when ESA’s motion for summary judgment failed to address the unreasonably dangerous condition that the Marshalls actually alleged?

a. Did the trial court err by adopting an excessively narrow definition of the “unreasonably dangerous condition” at issue, which runs counter to longstanding Texas law?

2. Did the trial court err in entering summary judgment against the Marshalls, when genuine issues of material fact exist with regard to each element challenged by ESA?

a. Did the trial court err when it found that ESA lacked actual or constructive knowledge of an unreasonably dangerous condition, when:
(1) the refrigerator setup at issue was a known continuing hazard, and ESA was aware of the risks it posed; (2) ESA created the unreasonably dangerous condition; and (3) ESA breached its duty to prevent the refrigerator setup from causing the puddle on the floor?

– ix –

b. Did the trial court err when it found that ESA’s negligence did not proximately cause Julia Marshall’s injuries, when the puddle in which she slipped and fell would not have existed without being created by the refrigerator setup, and when the incident was exactly the type of harm (slip-and-fall) that ESA acknowledged was foreseeable as a result of the refrigerator setup?

– x –

Statement of Facts

The Marshalls sued ESA for severe and permanent personal injuries sustained by Julia Marshall on or about January 2, 2015, when she slipped and fell in water that had leaked from a malfunctioning refrigerator onto the linoleum floor in the Marshalls’ motel room.

I. The Motel’s History of Refrigerator Leaks

ESA is a management company that operates an Extended Stay America motel located near NRG Stadium at 7979 Fannin Street in Houston, Texas (the “Motel”).3 Some time before January 2015, ESA had installed a series of Whirlpool refrigerator units atop hard, linoleum floors in guest rooms throughout the Motel, including but not limited to Room 324.4 By the end of 2014, these refrigerators had become old and outdated, were rusting and “on their last legs,” and were approaching the end of their life cycles.5 Many—if not most—were regularly malfunctioning and often leaked.6 Numerous guests at the Motel complained about leaking and malfunctioning refrigerators in their rooms.7

3 1 C.R. 26.

4 2 C.R. 323-24 (photographs from Room 324); 2 C.R. 387 at 107:5-7; 2 C.R. 419 at 29:2-9; 2 C.R. 434 at 92:11-15.

2 C.R. 429-30 at 72:23-73:16; 2 C.R. 465 at 57:19-21 23-24; id. at 59:4-8, 10.

2 C.R. 465 at 57:8-14, 16-17, 19-21, 23-24; id. at 59:4-8, 10-13, 15.

7 See, e.g., 1 C.R. 70, 73, 77, 81, 86, 88, 91, 97, 99-100, 108, 109, 112, 114, 118, 124, 126-28, 131, 134, 152, 158 (Maintenance Issues Log).

– 1 –

According to Sergio Jimenez, the Motel’s engineer at the time of the incident, malfunctioning defrost timers were the most common cause of refrigerator leaks he had seen at the Motel.8 As the refrigerators reached the end of their life cycle, the electronic defrost timers often malfunctioned without warning, causing the refrigerators to leak.9 Because the timers were electronic, there was no way to predict when such malfunctions might occur.10 When a defrost timer malfunctioned, the refrigerator would leak periodically every few days until the timer was repaired or replaced.11 In addition to defrost timer issues, refrigerators were also leaking due to problems with their compressors, fans, and thermostats.12

The Motel’s refrigerators broke down on such a regular basis that they had to be replaced at a rate of up to one to two each week. 13
Sheila Shepard, a housekeeper for the Motel at the time of the incident, explained that she would often go to a room and see water pooling in front of the refrigerator, then go on to the next room only to find the same thing.14 On any given

2 C.R. 431 at 79:13-17.

2 C.R. 431-32 at 79:13-81:1.

2 C.R. 431-32 at 80:21-81:1.

2 C.R. 432 at 81:2-6, 8-13, 15-25, 82:2.

2 C.R. 433 at 85:3-5, 7-11; id. at 86:14-25; 2 C.R. 434 at 90:13-91:1.

13 2 C.R. 375-76 at 60:21-61:1; 2 C.R. 434 at 90:2-5 (“Q. But if an entire refrigerator is being replaced, it’s because it’s so bad it’s better to just buy a new one? A. Yes.”).

14 2 C.R. 454-54 at 12:20-13: 6; 2 C.R. 465 at 58:1-8.

– 2 –

day, Shepard might find five or six leaking refrigerators out of the twenty-five rooms she cleaned.15 She reported leaking refrigerators to the Motel’s management on multiple occasions.16 ESA’s practice was for Motel housekeepers to only service each room once every seven days unless the room was occupied by a guest who had paid extra for more frequent housekeeping services.17 Nevertheless, Shepard would often return to guest rooms and discover that the leaks she had reported remained unresolved, with a pool of water still present at the base of the refrigerator units.18

ESA relied on the Motel’s housekeeping staff, including Shepard, to report problems with its appliances, including the refrigerators.19 Each ESA housekeeper typically cleaned somewhere around 25 rooms per day.20 Housekeepers were expected to visually inspect the refrigerators “just to make sure everything is working properly,” and to fill out a work order slip if repairs were needed.21

15 2 C.R. 465 at 58:9-12, 14-20. Ms. Shepard subsequently changed her testimony and stated that she had only encountered one to five leaking refrigerators during her entire time working for ESA. 2 C.R. 468 at 72:1-10. The appropriate weight to be afforded to Ms. Shepard’s conflicting testimony is a ultimately a question of fact for the jury, and must be viewed in the Marshalls’ favor for summary-judgment purposes.

16 2 C.R. 463 at 49:1-11; 2 C.R. 465 at 57:19-21, 23-24; id. at 58:1-12, 14-22; id. at 59:4-8, 10-13, 15.

17 2 C.R. 366 at 22:1-14; 2 C.R. 455-56 at 19:22-21:7, 15-24.

18 2 C.R. 465 at 59:16-60:2, 5-7.

19 2 C.R. 365 at 20:3-13; 2 C.R. 366 at 21:11-14; 2 C.R. 369 at 36:10-13; 2 C.R. 377 at 65:25-

66:2.

2 C.R. 455 at 19:16-21; 2 C.R. 456 at 23:4-20.

2 C.R. 365 at 20:3-13; 2 C.R. 366 at 21:11-14; 2 C.R. 369 at 36:10-13; 2 C.R. 377 at 65:25-

– 3 –

However, housekeepers were not trained on what to look for with regard to a potentially malfunctioning refrigerator, or how to determine whether repairs were required.22

Moreover, towards the end of 2014, the Motel was experiencing a high turnover rate for its employees and was not properly staffed, and the Motel’s operations were somewhat disorganized as a result.23 In January 2015, the general manager, assistant general manager, and engineer had all only been at the Motel for a few months.24 The turnover rate for housekeepers was so high that the Motel had to use a temp service, whose employees often did subpar work.25
Maintenance issues at the Motel were not properly documented during the latter part of 2014. Work orders would be kept for only one day, then thrown away, such that there would not be a way for the Motel’s engineers to track the maintenance history of a particular room.26 Although the general manager and assistant general

66:2 at 59:4-8, 10-13, 15; 2 C.R. 468 at 71:3-8.

22 2 C.R. 461 at 41:2-21; id. at 43:2-7; 2 C.R. 468 at 70:23-71:1; 2 C.R. 469 at 76:1-13.

23 2 C.R. 417 at 21:9-22:11; 2 C.R. 428 at 67:19-68:4; 2 C.R. 459 at 35:11-15; 2 C.R. 466-67 at 63:4-65:6.

24 2 C.R. 363 at 9:14-21; 2 C.R. 369 at 34:5-6; 2 C.R. 416 at 19:3-11.

25 2 C.R. 459 at 35:11-36:2; 2 C.R. 460 at 37:12-19; id. at 39:13-40:22; 2 C.R. 462 at 47:13-

48:22.

26 2 C.R. 420 at 35:3-6; id. at 36:11-24; 2 C.R. 421 at 39:10-19; id. at 40:10-18; 2 C.R. 423 at 45:3-12.

– 4 –

manager were supposed to check to confirm that the work had been done, this only happened “sometimes.”27

When Jimenez arrived at the Motel in December 2014, the engineer who was working there, Ismael, did not speak English.28 Ismael was transferred to another ESA location approximately three months after Jimenez came to the Motel because of the language barrier.29 Because of his inability to read and write in English, Ismael did not keep proper maintenance records.30 In particular, records were not being kept for refrigerator maintenance calls.31

II. Julia Marshall’s Fall and Injuries

On January 1, 2015, the Marshalls checked into Room 324 at the Motel after travelling to Houston from Mississippi for a boat show that was to begin the following day.32 On the morning of January 2, 2015, Dennis Marshall left to go to the boat show, and Julia Marshall stayed at the Motel to rest.33 Unbeknownst to Julia,

2 C.R. 422 at 41:4-11.

2 C.R. 423 at 47:13-23.

Id. at 48:8-16; 2 C.R. 525 at 49:5-19.

2 C.R. 424-25 at 52:16-53:20; 2 C.R. 425-26 at 56:18-57:9; 2 C.R. 427 at 62:3-10.

2 C.R. 428 at 67:19-68:4.

1 C.R. 231; 2 C.R. 332 at 7:23-8:12.

2 C.R. 333 at 10:25-11:17.

– 5 –

the refrigerator unit inside their room began to leak while she was sleeping, causing liquid to seep across the hard linoleum floor.

When Julia woke up from her nap, she needed to use the restroom.34 Barefoot, she attempted to walk across the Motel room towards the bathroom.35 The kitchen area was between the bathroom and the bed.36 As Julia was walking across the kitchen area, between the counter and a wall with shelves on it, she stepped in the liquid that had leaked from the refrigerator.37 Her feet slipped out from under her and she felt herself losing her balance.38 Grasping out for anything that might help break her fall, she fell forward and hit the wall with shelves, which then knocked her backward, sending her crashing down onto the bar-height table and stool in the dining area.39 She hit her head, knocking her unconscious and breaking her nose.40

The next thing Julia knew, she woke up on the wet linoleum floor, confused and “scared to death.”41 She did not know where she was and could not remember

1 C.R. 231; 2 C.R. 271 at 18:16-20; 2 C.R. 325.

1 C.R. 231; 2 C.R. 271 at 18:21-19:13; 2 C.R. 325.

2 C.R. 333 at 13:20-21.

1 C.R. 231; 2 C.R. 325.

2 C.R. 271 at 19:14-17; 2 C.R. 325.

39 2 C.R. 271 at 20:8-21; 2 C.R. 325-27; 2 C.R. 333-34 at 13:14-14:6; 2 C.R. 334 at 14:14-17; 2 C.R. 346-47 at 65:16-66:1.

2 C.R. 269 at 11:16-20; 2 C.R. 338 at 31:1-2.

2 C.R. 269 at 10:20-11:4; id. at 11:23-12:4; 2 C.R. 272 at 25:12-1; 2 C.R. 326.

– 6 –

her name, what day it was, or where she lived.42 She crawled to the bed, crying.43 She saw a purse on the nightstand and removed the wallet inside to look for a driver’s license, because she was “searching to figure out who I was” and “trying to figure out if that was me.”44 Eventually, she calmed down enough to try to call 9-1-1.45 However, she was apparently unsuccessful in dialing outside the hotel’s phone system and her call was routed to the front desk, where it was answered by the Motel’s assistant general manager, Thomas Gerald (“Jerry”) Lauersdorf.46 Although Julia was still frightened and crying, through her tears she told Lauersdorf that she had fallen in her room and was scared.47 She did not tell Lauersdorf how she had fallen or what had caused her fall, and did not mention anything about a leaking refrigerator.48

42 2 C.R. 269 at 10:20-22; 2 C.R. 271 at 21:3-2; 2 C.R. 272-73 at 25:21-26:1; 2 C.R. 326.

43 2 C.R. 272-73 at 25:21-26:1; 2 C.R. 326.

44 2 C.R. 271 at 21:3-6, 8-10, 12-14, 25; 2 C.R. 272-73 at 25:21-26:1; 2 C.R. 326; 2 C.R. 328.

45 1 C.R. 231; 2 C.R. 269 at 12:5-21; 2 C.R. 272 at 22:7-9; 2 C.R. 328.

46 1 C.R. 231; 2 C.R. 269 at 12:6-7; 2 C.R. 272 at 22:10-13; 2 C.R. 328; 2 C.R. 334 at 14:12-13; 2 C.R. 378 at 69:22-70:4.

47 1 C.R. 231; 2 C.R. 272 at 22:10-13; 2 C.R. 328; 2 C.R. 334 at 14:17-23.

48 1 C.R. 231.

– 7 –

A short time later, Lauersdorf showed up to Room 324, carrying towels.49 Lauersdorf told Julia that the refrigerator in her room leaked.50 He observed a circular puddle of clear liquid on the floor in front of the refrigerator, and put the towels down on top of it to soak up the water.51 Lauersdorf told Julia that she would need to keep towels there so that the water would not spread.52 Although Lauersdorf believes that he would have sent someone from the Motel’s engineering staff to look at the refrigerator after he left the room, there does not appear to be any record of that actually happening.53

As the day progressed, Julia struggled to remember what had happened.54 She was still “trying to figure things out.”55 She started writing down notes for herself as a “coping mechanism” because she was having trouble remembering what had happened, where she was, or why she was there.56

49 1 C.R. 231; 2 C.R. 269 at 13:4-6, 14-17; 2 C.R. 272 at 22:14-21; 2 C.R. 328; 2 C.R. 335 at

14:22-23; id. at 15:2-5.

50 1 C.R. 231; 2 C.R. 272 at 22:15; 2 C.R. 328.

51 1 C.R. 231; 2 C.R. 272 at 22:15-18, 22:22-23:1; 2 C.R. 328; 2 C.R. 334 at 15:2-5; 2 C.R.

379 at 76:8-9; 2 C.R. 387 at 106:6-13; id. at 107:3-4.

52 1 C.R. 231; 2 C.R. 272 at 22:15-18; id. at 22:22-23:1; 2 C.R. 328; 2 C.R. 334 at 15:2-5.

53 2 C.R. 379 at 75:10-11; 2 C.R. 382 at 85:22-86:21.

54 See 2 C.R. 270 at 15:3-7.

55 2 C.R. 269 at 10:21-22.

56 2 C.R. 269 at 10:12-11:4; 2 C.R. 270 at 15:3-7; 2 C.R. 271 at 18:5-7.

– 8 –

When Dennis returned to the Motel around 9 p.m. that evening, Julia did not recognize him.57 She told him that she had fallen.58 He noticed that she had redness and swelling on her left temple and on the right side of her head, and she told him that she had “a lot of pain” in her head and neck.59 She also had bruising under her eye.60 Julia did not know where she was until Dennis told her.61 She “d[id]n’t know if [she was] dreaming” and “just wanted to go to sleep.”62 Dennis later contacted Lauersdorf to make an incident report.63

The Marshalls had to keep towels in front of the refrigerator for the duration of their stay, as the refrigerator continued to leak.64 They had to change the towels every day because they would get soaked through.65 Their daughter and her boyfriend, who were in a nearby room, also had to use towels to absorb water leaking from their room’s refrigerator.66 Something appeared to be malfunctioning with the

2 C.R. 272 at 23:19-20; 2 C.R. 329.

2 C.R. 333 at 11:24-12:2; id. at 13:14-21.

2 C.R. 335 at 19:10-20:2.

2 C.R. 336-37 at 24:5-26:4.

2 C.R. 329; 2 C.R. 335 at 21:7-8.

2 C.R. 272 at 24:5-8, 18; 2 C.R. 329.

2 C.R. 334 at 15:22-16:2; 2 C.R. 387 at 107:17-19; see 2 C.R. 408-11 (incident report).

2 C.R. 337 at 28:1-3.

Id. at 28:19-25.

2 C.R. 337-38 at 29:17-30:16.

– 9 –

refrigerator’s defrosting mechanism, as the bottom shelf of the refrigerator would freeze and then melt, causing water to run out from under the refrigerator.67

The Marshalls checked out of the Motel on January 12, 2015.68

2 C.R. 337 at 29:1-7.

2 C.R. 335 at 18:1-4.

– 10 –

Statement of Procedural History

On June 10, 2016, the Marshalls filed this lawsuit against Extended Stay America and ESA P Portfolio LLC, alleging causes of action for premises liability and loss of consortium.69 The Marshalls’ premises-liability claim was based on their contention that the outdated, malfunctioning and leak-prone refrigerator installed in their motel room over a hard, linoleum tile floor that became slippery when wet (a condition hereinafter referred to as the “refrigerator setup”) constituted an unreasonably dangerous condition.70 Both defendants filed answers on July 8, 2016.71 On June 29, 2017, ESA was substituted into the suit as the proper defendant.72

On February 6, 2018, the Marshalls filed a motion to compel ESA’s production of relevant documents that had previously been requested through the discovery process.73

Ten days later, on February 16, 2018, ESA filed a motion for summary judgment on all of the Marshalls’ claims.74 ESA’s summary-judgment motion

69 1 C.R. 4-12.

70 Id. (original petition asserting cause of action for premises liability based on leaking refrigerator).

71 1 C.R. 13-16 (Extended Stay America); 1 C.R. 17-20 (ESA P Portfolio LLC).

72 See 1 C.R. 21-23.

73 2 C.R. 483-87.

74 1 C.R. 25-202.

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contended that, as a matter of law, (1) it did not have actual or constructive notice of an unreasonably dangerous condition (the definition of which it expressly limited to the specific puddle of water created by the refrigerator setup); and (2) its acts or omissions did not proximately cause the Marshalls’ damages.75 ESA also contended that it had no duty to remedy or warn the Marshalls of an unreasonably dangerous condition because it was not aware of the water on the floor.76

The Marshalls filed a response to ESA’s summary-judgment motion on March 16, 2018, explaining that the unreasonably dangerous condition at issue in the case was not the particular puddle of water on the floor, but rather the refrigerator setup itself, and offering evidence to support the elements of ESA’s knowledge, proximate causation, and duty owed to the Marshalls.77

ESA filed a reply to the Marshalls’ summary-judgment response, along with an objection to the Marshalls’ summary judgment evidence, on April 24, 2018.78 ESA’s reply included two additional exhibits, including a new expert witness affidavit, dated April 23, 2018.79

Id.

1 C.R. 33.

1 C.R. 204-65; 2 C.R. 266-499.

2 C.R. 502-530.

2 C.R. 519-523 (affidavit of Fred del Marva, attached to ESA’s reply as “Exhibit G”).

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The Marshalls objected to ESA’s late-filed evidence on April 26, 2018 based on ESA’s failure to seek leave of court, and ESA responded by asserting that the additional evidence was only submitted in support of its objections to the Marshalls’ evidence.80

The trial court granted ESA’s motion for summary judgment on May 1, 2018, overruling all evidentiary objections filed by both parties and dismissing all of the Marshalls’ claims with prejudice.81 The Marshalls timely filed a notice of appeal on May 18, 2018.82

80 2 C.R. 531-32 (Marshalls’ objections to additional evidence); id. at 533-35 (ESA’s response to Marshalls’ objections).

2 C.R. 537.

2 C.R. 543-44.

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Summary of the Argument

The trial court erred in granting summary judgment in ESA’s favor on the Marshalls’ premises liability claim, because genuine issues of material fact exist which should have been submitted to a jury. The trial court also erred in granting summary judgment on Dennis Marshall’s loss of consortium claim, because it is a derivative claim that should have survived summary judgment along with the premises claim upon which it is based.
Summary judgment on the Marshalls’ premises liability claim was granted in error for at least six reasons.

First, ESA’s entire motion was based on a premises condition (water on the floor) different from the condition that actually formed the basis for the Marshalls’ complaints (refrigerator setup). Because ESA failed to negate—or even challenge— its liability with regard to the unreasonably dangerous condition actually alleged by the Marshalls, it failed to establish that it was entitled to judgment as a matter of law.
Second, the refrigerator setup was a known continuing hazard, and the evidence demonstrates that ESA was aware that it created an unusually high risk of harm. This evidence was sufficient to satisfy the element of ESA’s knowledge under longstanding Texas law; the Marshalls were not required to show that ESA had actual or constructive knowledge of the specific puddle of water on the floor.

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Third, requiring the Marshalls to prove ESA’s knowledge of the puddle itself would go against public policy, as it would essentially render ESA immune from its negligence in continuing to use leaky, malfunctioning refrigerators that it knew would create dangerous conditions just like the one that actually materialized in this case, with no safeguards to protect invitees from this known risk.

Fourth, ESA is charged with knowledge because it created the unreasonable condition about which the Marshalls complain; namely, the refrigerator setup.

Fifth, ESA owed the Marshalls a duty to protect them from risks of which ESA was or should have been aware, including the duty to ensure that a known continuing hazard (such as the refrigerator setup) does not cause an unreasonably dangerous condition (such as an unexpected puddle on a linoleum floor). ESA’s failure to do so constitutes further evidence of its constructive knowledge.

Finally, the evidence is more than sufficient to establish proximate causation. Julia Marshall would not have slipped and fallen in a puddle created by a leaking refrigerator if the refrigerator had not leaked in the first place. The incident was foreseeable, as ESA was aware that installing a malfunctioning, leak-prone refrigerator over a slippery linoleum floor created an unusually high risk that someone would slip and fall.
This Court, therefore, should reverse the trial court’s dismissal of the Marshalls’ claims and remand this case for a trial on the merits.

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Argument & Authorities

I. Standards of Review

A trial court’s grant of summary judgment is reviewed de novo.83 Appellate review of a summary judgment requires consideration of all summary judgment grounds presented to the trial court and preserved for appeal.84 Where, as here, the order granting summary judgment fails to specify the grounds upon which the trial court relied, summary judgment will be affirmed if any of the independent grounds for summary judgment is meritorious.85 However, summary judgment cannot be affirmed on grounds that were not expressly set out in the motion.86

Summary judgment is not intended to deprive a party of a full hearing on the merits of any issue of fact, nor to deprive a litigant of the right to trial by jury.87 If the nonmovant successfully raises a genuine issue of material fact, summary judgment must be denied and the case should proceed to trial.

83 Valence Operating Co. v. Dorsett, 164 S.W.3d 665, 661 (Tex. 2005); Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

84 Cohen v. Landry’s Inc., 442 S.W.3d 818, 823 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Neely, 418 S.W.3d at 60).

85 Canas v. Centerpoint Energy Res. Corp, 418 S.W.3d 312, 318 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

86 Stiles v. Resolution Trust Corp, 867 S.W.2d 24, 26 (Tex. 1993).

87 E.g., Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989); Palermo v. Bolivar Yacht Basin, Inc., 84 S.W.3d 746, 747 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (internal citation omitted).

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A. Traditional Summary Judgment

To prevail on a traditional motion for summary judgment, the movant bears

the burden of conclusively establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.88 When a defendant moves for summary judgement, it must conclusively negate at least one essential element of the plaintiff’s cause of action, or conclusively establish each element of an affirmative defense.89 If the movant fails to establish that there is no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law, the trial court cannot properly grant summary judgment.90

All evidence favorable to the nonmovant must be taken as true and all doubts must be resolved in the nonmovant’s favor.91 Every reasonable inference must be made in favor of the nonmovant.92 Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could reach different conclusions.93 A matter is only “conclusively established” if reasonable people could not differ with regard to

88 TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

89 Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (internal citations omitted).

Mann Frankfort, 289 S.W.3d at 848.

Valence Operating Co., 164 S.W.3d at 661.

Id.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

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the conclusion to be drawn from the evidence.94

B. No-Evidence Summary Judgment

A no-evidence summary judgment is essentially a pretrial directed verdict.95

In order to defeat a no-evidence motion for summary judgment, a nonmovant must simply produce “more than a scintilla” of probative evidence in support of each challenged element, thereby raising a genuine issue of material fact.96 “More than a scintilla” of evidence means that reasonable and fair-minded individuals could differ in their conclusions.97 “Less than a scintilla” of evidence means that the evidence does not rise beyond a mere surmise or suspicion.98 All evidence favorable to the nonmovant must be taken as true, and all contrary evidence and inferences must be disregarded.99 The nonmovant is not required to marshal its proof; it need only point out evidence that raises a fact issue on the challenged elements.100

If the nonmovant presents more than a scintilla of evidence on the elements challenged by the no-evidence motion, the court cannot properly grant a motion for

94 City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

95 Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (internal citations omitted).

96 Cohen, 442 S.W.3d at 822 (internal citation omitted).

97 Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

98 Id.

99 Timpte Industries, 286 S.W.3d at 310 (internal citations omitted).

100 Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

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summary judgment and the nonmovant is entitled to a trial on the merits.101

II. Premises Liability Claim

The trial court erred in granting summary judgment on the Marshalls’ premises liability claim, because there are genuine issues of material fact on each challenged element that should have been submitted to a jury.

As paying guests of the Motel, the Marshalls were on the Motel premises as invitees.102 The prima facie elements of a premises liability claim by an invitee are:
(1) a condition on the premises posed an unreasonable risk of harm; (2) actual or constructive knowledge of the condition by the owner or occupier of the premises;

(3) the owner or occupier failed to exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier’s failure to use such care proximately caused
the plaintiff’s injury.103

ESA’s summary-judgment motion challenges element 2 (ESA’s actual or

constructive knowledge) and element 4 (causation).104 ESA also contends that it had no duty to remedy or warn the Marshalls of an unreasonably dangerous condition

101 Ridgway v. Ford Motor Co., 135 S.W.3d 598, 601 (Tex. 2004).

102 Motel 6, G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curiam) (internal citation omitted).

103 E.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (multiple internal citations omitted).

104 1 C.R. 28-35.

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because it was not aware of the water on the floor.105 ESA did not challenge element 1 (existence of an unreasonably dangerous condition) or element 3 (ESA’s failure to use reasonable care to reduce or eliminate the risk); accordingly, those issues were not before the trial court and are not before this Court.

A. ESA failed to negate its liability for the unreasonably dangerous condition actually alleged by the Marshalls—namely, the refrigerator setup itself.

Summary judgment was improper because ESA’s motion did not actually

address the unreasonably dangerous condition about which the Marshalls actually complained. ESA failed to establish that it was entitled to summary judgment as a matter of law, because the premise upon which it based its entire argument was flawed.

As the Marshalls have repeatedly and consistently made clear in this lawsuit, including in their summary judgment briefing, the unreasonably dangerous condition about which they complain is the manner in which the refrigerator in Room 324 had been arranged and maintained.106 Specifically, the unreasonably dangerous condition alleged by the Marshalls consisted of an old, outdated, and leak-prone refrigerator installed over a hard linoleum tile floor that became slippery when

105 1 C.R. 33.

106 1 C.R. 210 (“The condition in this case that posed an unreasonable risk of harm was the refrigerator installation in Julia Marshall’s room.”) (underlining supplied).

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wet (i.e., the “refrigerator setup”).107

ESA’s motion did not challenge the element of the existence of an unreasonably dangerous condition, and more specifically did not challenge the Marshalls’ assertion that the refrigerator setup itself is the unreasonably dangerous condition at issue in this case. Accordingly, the Marshalls were not required to bring forth proof on this element at the summary-judgment stage, and the issue of whether the refrigerator setup constitutes an unreasonably dangerous condition is not before this Court.108

Nevertheless, ESA based its entire summary-judgment motion on the contention that it did not have actual or constructive knowledge of “the condition complained of, namely the water [on the floor],” because the water had not yet accumulated when the Marshalls checked into their room and because ESA did not have a subsequent opportunity to inspect the room to discover the water on the floor.109 Therefore, ESA argues, its acts or omissions could not have proximately

107 1 C.R. 204 et seq.; see also 1 C.R. 6-7 (original petition asserting cause of action for premises liability based on leaking refrigerator).

108 See, e.g., Johnson, 73 S.W.3d at 204 (internal citation omitted) (summary judgment cannot be granted on grounds not presented in motion); Timpte Industries, 286 S.W.3d at 310 (internal citations omitted) (same).

109 1 C.R. 25 (underlining supplied); see generally 1 C.R. 25-39 (ESA’s motion for summary judgment).

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caused Julia Marshall’s injuries.110

However, at no point in ESA’s motion does it attempt to negate its actual or constructive knowledge of the refrigerator setup itself, the condition about which the Marshalls actually complained, nor does it address the element of proximate cause in this regard.

ESA challenged the elements of actual or constructive knowledge of an unreasonably dangerous condition and proximate cause under the traditional summary judgment standard, so it carried the burden of conclusively disproving these elements as a matter of law.111 ESA failed to meet this burden.

A trial court cannot grant more relief than requested in the summary-judgment motion, nor can it grant a summary judgment on grounds not presented in the motion.112 Because ESA’s motion failed entirely to address the issues of both (1) actual or constructive knowledge and (2) proximate causation with regard to the unreasonably dangerous condition actually alleged by the Marshalls (i.e., the refrigerator setup itself), ESA was not entitled to judgment as a matter of law and the trial court’s entry of summary judgment was in error.

110 1 C.R. 33-36.

111 1 C.R. 29; TEX. R. CIV. P. 166a(c).

112 Johnson, 73 S.W.3d at 204 (internal citation omitted); Timpte Industries, 286 S.W.3d at

310 (internal citations omitted).

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B. ESA had actual or constructive knowledge of an unreasonably dangerous condition.

In order to prevail on their premises liability claim, the Marshalls must show

that ESA had actual or constructive knowledge of an unreasonably dangerous condition.113 This element can be established through either direct or circumstantial evidence.114

1. The refrigerator setup was a known continuing hazard, and ESA was aware that it created an unusually high risk of harm.

Even if ESA had succeeded in demonstrating that the evidence conclusively negated its actual or constructive knowledge of the specific puddle of water on the floor (which, as explained herein, it did not), such a showing would still have been insufficient to establish that ESA was entitled to summary judgment, as the refrigerator setup was itself an unreasonably dangerous condition.

a. Texas law distinguishes premises-liability claims based on known continuing hazards.

Although a premises-liability plaintiff must generally show that the defendant had actual or constructive knowledge of the dangerous condition that existed at the time and place the injury occurred (as opposed to knowledge of a preceding situation or circumstances that produced the immediate condition), there is a well-established

113 E.g., Daenen, 15 S.W.3d at 99.

114 M. Rivas Enterprises, Inc. v. Gaytan, 24 S.W.3d 402, 409 (Tex. App.—Corpus Christi 2000, pet. denied) (citing Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998)).

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exception to this rule for known continuing hazards.115

A continuing hazard can arise when a defendant’s ongoing course of conduct, manner or method of operation, or the condition of an instrumentality, creates a “greater danger than one would ordinarily encounter” in such a situation, thereby posing an “unusually high risk” of harm.116 In this context, a defendant’s awareness of the unusually high risk of harm posed by the continuing hazard is sufficient to satisfy the element of actual or constructive knowledge.117 The plaintiff is not required to show that the defendant had actual or constructive knowledge of the particular instance of harm that actually materialized.118

For example, in Corbin v. Safeway Stores, Inc. a grocery shopper slipped on a loose grape that had fallen from a self-service display consisting of a slanted, uncovered bin full of grapes over a green linoleum tile floor without an anti-slip

115 E.g., City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536-37 (Tex. 1996) (per curiam); Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006); Corbin v. Safeway Stores, Inc., 648 S.W. 292 (Tex. 1983); Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 901 (Tex. App.—Dallas 2003, no pet.) (noting that premises-liability claims based on known continuing hazards are “fundamentally different” in nature from those based on specific, non-recurring conditions).

116 Taylor, 222 S.W.3d at 408; Corbin, 648 S.W.2d at 296; Crosby, 122 S.W.3d at 901.

117 Corbin, 648 S.W.2d at 295-96; Nat’l Convenience Stores, Inc. v. Erevia, 73 S.W.3d 518,

523 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992); Daenen, 15 S.W.3d at 101); Crosby, 122 S.W.3d at 901.

118 Corbin, 648 S.W.2d at 295-96; Erevia, 73 S.W.3d at 523 (citing Keetch, 845 S.W.2d at 265; Daenen, 15 S.W.3d at 101); Crosby, 122 S.W.3d at 901.

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mat.119 The store admitted it was aware that its display was “unusually hazardous” because grapes were frequently dropped onto the floor, creating a substantial risk that a customer would step on a grape and fall, and that this awareness was the rationale behind its company policy requiring a non-skid mat to be placed in front of such displays.120 The Texas Supreme Court found that the evidence was sufficient to allow a jury to infer that the store had knowledge of an unreasonably dangerous condition, and held that proof of actual or constructive knowledge regarding the particular grape upon which the shopper had slipped was not required.121

Similarly, in National Convenience Stores, Inc. v. Erevia, a convenience-store customer slipped on a puddle near an open, “barrel-type” display containing ice and drinks with no protective mat underneath it.122 The store’s manager testified that ice and/or water on the floors was a recognized safety hazard that posed a risk to employees and customers and could potentially expose the company to lawsuits; that ice could spill out when customers removed drinks from iced barrel displays; that the store sold many drinks from iced barrel displays; and that there was a heightened concern about water and ice around iced barrel displays due to the risk of falls.123

119 648 S.W.2d 292.

120 Id.

121 Id. at 294-95.

122 73 S.W.3d 518.

123 Id. at 523.

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This Court held that the evidence was sufficient to allow the jury to infer that the store had knowledge of an unreasonably dangerous condition, and that proof of the store’s actual or constructive knowledge of the particular puddle that had formed was not required.124

Texas case law is replete with additional examples wherein evidence of a defendant’s awareness of an unusually high risk created by a known continuing hazard has been held sufficient to satisfy the element of actual or constructive knowledge of an unreasonably dangerous condition.125

Continuing-hazard cases requiring proof of the defendant’s actual or constructive knowledge of the specific dangerous condition at the time and place the injury are easily distinguishable, as the alleged continuing hazards in such cases did

124 Id.

125 See, e.g., Crosby, 122 S.W.3d 899 (awareness that entryway floormat had propensity to buckle under foot traffic and created unusually high fall risk was sufficient; knowledge of specific bump on mat not required); Towers of Town Lake Condominium Ass’n, Inc. v. Rouhani, 295 S.W.3d 290 (Tex. App.—Austin 2009, pet. denied) (awareness that enamel paint would be slippery when wet and that pool deck would usually be wet when used, thereby creating unusually high risk of falls was sufficient; knowledge of specific puddle of water on pool deck not required); Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.—Tyler 2003, pet. denied) (awareness that self-service mirror display would be accessed by customers and lacked available safety features such as storage bins, thereby creating unusually high risk that mirrors could break and injure customers was sufficient; knowledge of specific stacked mirrors that fell not required); Stewart v. Wal-Mart Stores, Inc., 120 F.3d 266 (5th Cir. 1997) (awareness that plant display required regular watering and conscious decision to place display in high-traffic area created unusually high fall risk was sufficient; knowledge of specific puddle of water on floor not required); H.E. Butt Grocery Co. v. Rojas, No. 13-95-387-CV, 1997 WL 33760912 (Tex. App.— Corpus Christi Apr. 24, 1997, no pet.) (not designated for publication) (awareness that open, self-service dried pinto bean display above off-white, flecked tile floor with no protective mat created unusually high fall risk was sufficient; knowledge of specific beans on floor not required).

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not actually create a greater danger than one would ordinarily encounter in similar

situations.126

b. This long-standing precedent is supported by valid and compelling policy concerns.

Premises liability cases are difficult to make, but they should not be impossible. If the Court were to impose a requirement that the Marshalls must prove ESA’s actual or constructive knowledge of the specific puddle of water on the floor in the Motel room in this particular case, it would essentially be rendering ESA immune from liability for the obvious negligence of using refrigerators that were regularly malfunctioning, causing dangerous conditions just like this one, without safeguards for this known danger created over time by its instrumentalities. When an instrumentality has a propensity to cause a certain dangerous condition, and such condition subsequently materializes, it is not notice of the particular hazard itself which is actionable, it is notice of the instrumentality with the propensity to create it.127

126 See, e.g., Taylor, 222 S.W.3d at 409 (no evidence that drink station was set up in such a way as to create greater danger of ice or spilled drinks on floor than would normally be encountered; knowledge of specific piece of partially melted ice required); H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218-19 (Tex. 1999) (due to defendant’s numerous safety precautions, self-service grape display did not create greater danger of grapes on floor than would ordinarily be encountered; knowledge of specific grape on floor required).

127 See, e.g., Crosby, 122 S.W.4d at 901 (“A claim that something used by [a premises owner] is inherently dangerous is fundamentally different than a claim that a dangerous condition arose [on the premises] and caused injuries.”); see generally Section II(B)(1)(a), supra pp. 23-27.

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c. The refrigerator setup in the Marshalls’ room was a known continuing hazard.

In this case, the refrigerator setup constituted a known continuing hazard. By installing an old, outdated, malfunctioning, leak-prone refrigerator over a hard linoleum tile floor that became slippery when wet, ESA created a greater danger than one would ordinarily encounter with a hotel room refrigerator; as such, the refrigerator setup posed an unusually high risk of harm.

Hotel room refrigerators generally do not pose a significant risk of harm, even if situated atop linoleum tile floors, because a properly functioning refrigerator does not unexpectedly leak water onto the floor. Accordingly, the danger that is ordinarily encountered with a hotel room refrigerator (or any refrigerator) is minimal at best.

However, an outdated, malfunctioning refrigerator with a propensity to leak water onto the floor without warning does pose a risk of considerable harm— namely, the risk of someone slipping in the water and falling. This risk is compounded further if the leak-prone refrigerator is situated on top of a linoleum tile floor that becomes slippery when wet. Such an arrangement therefore creates a greater danger than one would ordinarily encounter with a hotel room refrigerator and poses a higher degree of risk than would usually occur (i.e., an “unusually high” risk for such a situation).

The evidence in this case indicates that the old Whirlpool refrigerators in use

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at the Motel at the time of the incident were prone to malfunctions and leaking. Shepard, the Motel’s housekeeper, acknowledged that ESA had a regular problem with leaking refrigerators during the timeframe of approximately December 2014 to January 2015.128 She testified that refrigerators throughout the hotel were on their last legs, and that many of them leaked.129 Shepard testified that she would go to one room and see water pooling in front of the refrigerator, then go on to the next room only to find the same thing.130 She testified that, on any given day, she might find five or six leaking refrigerators out of the twenty-five rooms she cleaned.131

Jimenez, the Motel’s engineer, testified that, as refrigerators reach the end of their life cycle, their electronic defrost timers (which he referred to as the “time defrost”) often malfunction without warning, causing the refrigerator to leak.132 He explained that, because the defrost timers are electronic, as the refrigerator gets older there is no way to predict when the defrost timer may malfunction because “[you

128 2 C.R. 465 at 59:4-8, 10 (“[Q.] … And the timeframe I’m interested in is, like, December, January of 2015. During that period of time, when there was a regular problem with the refrigerators leaking, all you knew to do was to fill out the form. Right? … A. Correct.”).

129 Id. at 57:8-14, 16-17, 19-21, 23-24.

130 Id. at 58:1-8.

131 Id. at 58:9-12, 14-20. Ms. Shepard subsequently changed her testimony and stated that she had only encountered one to five leaking refrigerators during her entire time working for ESA. 2 C.R. 468 at 72:1-10. The appropriate weight to be afforded to Ms. Shepard’s conflicting testimony is a ultimately a question of fact for the jury, and must be viewed in the Marshalls’ favor for summary-judgment purposes.

132 2 C.R. 431-32 at 79:13-81:1.

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n]ever know when it can be running out.”133 He also testified that, when a defrost timer goes out, the refrigerator will leak periodically every few days until the timer is repaired or replaced, and that a guest could have no indication that the defrost timer in her room’s refrigerator had gone out until a puddle of water appeared in front of the refrigerator several hours (or several days) later.134 Jimenez further testified that malfunctioning defrost timers were the most common causes of refrigerator leaks that he had seen at the Motel.135

Significantly, Jimenez also testified that the only way that he, as the Motel’s engineer, would know whether a particular refrigerator was suffering from a malfunctioning defrost timer (or another issue causing the refrigerator to periodically leak) would be if the housekeepers who went into the rooms regularly were alert enough to identify this as a problem, and not simply wipe up the water and say nothing.136 As Shepard acknowledged, at the time of the Marshalls’ stay at the Motel, and for some time beforehand, ESA had been forced to use temporary labor for its housekeeping services, and the untrained temporary workers tended not to be very good at their jobs.137 This testimony is more than sufficient to allow a jury to

133 2 C.R. 431-32 at 80:21-81:1.

134 2 C.R. 432 at 81:2-6, 8-13, 15-25, 82:2.

135 2 C.R. 431 at 79:13-17.

136 2 C.R. 432 at 82:3-83:21; 2 C.R. 432-33 at 84:5-85:8.

137 2 C.R. 459 at 35:11-36:2; 2 C.R. 460 at 37:12-19; id. at 39:13-40:22; 2 C.R. 462 at 47:13-

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reasonably infer that a malfunctioning refrigerator that was repeatedly leaking and creating hazardous puddles of water on the floor could easily have been ignored because the temporary housekeeping staff failed to report that a problem existed.

Lauersdorf, the Motel’s assistant general manager, testified that the refrigerators broke down on such a regular basis that ESA was replacing them at a rate of up to one to two a week during his tenure at the Motel.138 He estimated that ESA had to replace between 50 or 60 to 100 refrigerators in total during that time.139 Although the Maintenance Issues Log produced by ESA is so inexplicably and heavily redacted as to call its completeness and credibility into question,140 it
still reflects almost 40 documented refrigerator issues leading up to the Marshalls’ stay. Three entries specifically state that the refrigerators were leaking.141 Ten entries state that the refrigerators were not working properly because they were not cooling.142 Six entries appear to indicate that the refrigerators were missing from the rooms entirely—presumably because they were in such a state of disrepair that they

48:22.

138 2 C.R. 375-76 at 60:21-61:1.

139 2 CR 376 at 64:16-17; 2 C.R. 377 at 65:3-15.

140 Of the 222 pages produced by ESA, 126 are redacted in their entirety, and the remainder are completely redacted but for a few lines. 2 C.R. 63-173. No explanation is provided to account for these redactions. See 2 C.R. 483-87 (motion to compel).

141 1 C.R. 91 (two entries); 1 C.R. 158.

142 1 C.R. 73; 1 C.R. 97; 1 C.R. 108; 1 C.R. 109 (three entries); 1 C.R. 114; 1 C.R. 127; 1 C.R. 131; 1 C.R. 152.

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needed to be replaced, consistent with Jimenez’s and Lauersdorf’s testimony.143 And 13 entries simply indicate that the refrigerators were “not working” or had been “fixed,” without specifying precisely why.144 Moreover, Jimenez’s testimony indicates that the Maintenance Issues Log, even in its unredacted form, is likely far from complete because many maintenance issues at the Motel were not properly documented.145 Indeed, although ESA represents that the Maintenance Issues Log includes “all entries related to Room 324 from January 2, 2010 through the date of Julia Marshall’s accident,” there is not even an entry for the incident itself—even though Lauersdorf testified that ESA’s engineer had investigated the Marshalls’ refrigerator shortly after the incident, and that there should be documentation of the investigation even if nothing was ultimately done or needed to be done.146

Accordingly, even though Lauersdorf could neither confirm nor deny whether the particular refrigerator that was in Room 324 at the time of the incident had a history of ongoing issues prior to Ms. Marshall’s fall,147 the evidence is more than

143 1 C.R. 86; 1 C.R. 100; 1 C.R. 112; 1 C.R. 126; 1 C.R. 128; 1 C.R. 134.

144 1 C.R. 70; 1 C.R. 77; 1 C.R. 81; 1 C.R. 88 (two entries); 1 C.R. 99; 1 C.R. 100 (2 entries);

1 C.R. 109; 1 C.R. 118 (2 entries); 1 C.R. 124; 1 C.R. 134.

145 E.g., 2 C.R. 420 at 35:3-6; id. at 36:11-24; 2 C.R. 421 at 39:10-19; id. at 40:10-18; 2 C.R.

422 at 41:4-11; 2 C.R. 423 at 45:3-12; 2 C.R. 424-25 at 52:16-53:20; 2 C.R. 425-26 at 56:18-57:9;

2 C.R. 427 at 62:3-10; 2 C.R. 428 at 67:19-68:4.

146 2 C.R. 379 at 75:10-11; id. at 76:10-11; 2 C.R. 379-80 at 76:24-78:12.

147 2 C.R. 386 at 102:21-103:4; 2 C.R. 382 at 86:25-87:2.

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sufficient to allow a jury to infer that that ESA’s continued use of these regularly malfunctioning Whirlpool refrigerators throughout the Motel, particularly in conjunction with the linoleum tile floors in its kitchens, created a greater danger than one would ordinarily encounter with a hotel room refrigerator. As a result, the refrigerator setup in the Marshalls’ room constituted a continuing hazard and thus an unreasonably dangerous condition.
d. ESA was aware that the refrigerator setup created an unusually high risk of harm.

There is ample evidence demonstrating that ESA was aware of the unusually high risk of harm created by its refrigerator setup.

There is no single test to determine a defendant’s knowledge that a condition presents an unreasonable risk of harm.148 Admissions by defendants or their employees regarding their awareness are, of course, compelling evidence of actual knowledge.149 Evidence of previous incidents, while potentially helpful, is not necessary, as the issue of whether a risk of harm had actually materialized prior to the incident in question is not determinative of whether the defendant had actual or constructive knowledge of the risk itself.150

148 Bowman v. Brookshire Grocery Co., 317 S.W.3d 500, 504 (Tex. App.—Tyler 2010, pet. denied) (citing Univ. of Tex.—Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)).

149 See, e.g., Corbin, 648 S.W.2d at 295; Erevia, 73 S.W.3d at 523; Crosby, 122 S.W.3d at

901.

150 Safeway Stores, Inc. v. Scamardo, 673 S.W.2d 371, 373 (Tex. App.—Houston [1st Dist.]

– 33 –

In this case, the deposition testimony of ESA’s own employees shows that ESA had actual knowledge of the unusually high risk of harm created by its refrigerator setup. Jimenez’s testimony makes it clear that he was familiar with the functioning— and dysfunctioning—of electronic defrost timers in refrigerators approaching the end of their life cycles, and the risks of unexpected and unpredictable periodic leaks that occur as a result.151 He testified that, by keeping so many refrigerators that were at the end of their life cycle and breaking down so frequently that they needed to be replaced regularly, ESA knew that dangerous conditions were “about to occur.”152 Shepard testified that she notified ESA about leaking refrigerators on multiple occasions.153

Lauersdorf, Shepard, and Jimenez all testified as to their awareness that a leaking refrigerator which causes water to accumulate on a linoleum floor can be a dangerous condition that creates a high risk for someone to slip and fall.154 Lauersdorf also acknowledged he was aware that a hotel that does not take care of its property and allows dangerous conditions to exist and accumulate risks exposing

1984, no writ); Reynolds, 127 S.W.3d at 31.

151 E.g., 2 C.R. 431-32 at 79:13-81:6, 8-13, 15-25, 82:2.

152 2 C.R. 429 at 72:5-9, 11.

153 2 C.R. 463 at 49:1-11; 2 C.R. 465 at 57:19-21, 23-24; id. at 58:1-12, 14-22; id. at 59:4-8, 10-13, 15.

154 2 C.R. 384-85 at 95:24-98:2; 2 C.R. 429 at 70:7-9, 11-14, 16-18, 20; id. at 71:2-12, 14-15, 17-20, 22; 2 C.R. 435 at 94:7-8; 2 C.R. 466 at 61:19-24; id. at 62:1-4, 6-8, 10-15, 17-19, 21.

– 34 –

its guests to needless harm.155 And the testimony of both Jimenez and Lauersdorf demonstrates that ESA’s awareness of the unusually high risks associated with the accumulation of water on the floor led it to adopt a policy such that, if a leaky refrigerator could not be fixed, the room should be put out of service and the guests moved to a different room.156

Moreover, the Marshalls presented evidence, including Julia Marshall’s contemporaneous notes from the date of the incident, that the Motel employee who responded to her call came to the Marshalls’ room with towels even though she had not mentioned the nature or cause of her fall.157 This is competent evidence that must be construed in the Marshalls’ favor at the summary-judgment stage, and this evidence alone—even in the absence of the other evidence cited herein—clearly demonstrates circumstantially that the ESA employee who responded to Julia’s call expected exactly this type of problem.

2. ESA had knowledge of the unreasonably dangerous condition because it created the condition.

A jury may infer that a premises owner has knowledge of an unreasonably

dangerous condition based on circumstantial evidence that the owner created the

155 2 C.R. 385 at 98:18-21, 23.

156 2 C.R. 376 at 63:18-22; 2 C.R. 430 at 75:25-76:15.

157 E.g., 1 C.R. 231; 2 C.R. 269 at 13:14-17; 2 C.R. 272 at 22:14; 2 C.R. 328 at 14:22-23; id. at 15:2-5.

– 35 –

condition.158 Circumstantial evidence is sufficient to establish a defendant’s knowledge when it supports, either directly or by reasonable inference, the conclusion that the defendant caused the unreasonably dangerous condition.159

In this case, the evidence is more than sufficient to support a reasonable inference that ESA created the unreasonably dangerous condition posed by the refrigerator setup. As explained in detail above, the evidence shows that: (1) ESA installed outdated refrigerators over linoleum tile floors in the Motel’s rooms, including Room 324; (2) the refrigerators regularly malfunctioned and were prone to leaking water onto the floor; (3) ESA was aware, or at the very least would have been aware had it conducted a reasonable inspection, that the refrigerators were regularly malfunctioning and leaking water onto the floor; (4) despite such knowledge, ESA failed to conduct a reasonable inspection of the refrigerator in Room 324 to determine whether it was malfunctioning and leaking water; (5) a refrigerator that unexpectedly leaks water onto a linoleum floor creates an unreasonably dangerous slipping hazard; (5) ESA was aware of this risk; and (6) Julia Marshall slipped in a puddle of water that accumulated, unexpectedly and without warning, on the linoleum floor in front of the refrigerator in Room 324. This

158 Keetch, 845 S.W.2d at 266; Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex.

2012).

159 Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 394 (Tex. 2016) (internal citations omitted).

– 36 –

evidence is sufficient to create a fact issue regarding ESA’s knowledge, which should have precluded summary judgment.160

In conclusion, the summary-judgment evidence, when viewed in the light most favorable to the Marshalls and drawing all inferences in their favor, is sufficient to create a fact question as to whether ESA had actual and/or constructive knowledge of an unreasonably dangerous condition. As such, summary judgment on this element was precluded as a matter of law.

C. ESA owed the Marshalls a duty to prevent the refrigerator setup from causing an unreasonably dangerous condition.

A premises owner owes a duty to exercise ordinary care to protect invitees

from risks of which the owner is aware or should be aware after reasonable inspection.161 A premises owner’s liability to an invitee “depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition, not on whether a specific set of facts or a specific breach of duty is established.”162

160 See Keetch, 845 S.W.2d at 265 (holding that issue of knowledge was properly submitted to jury based on evidence that Kroger had sprayed plants 30 minutes before plaintiff’s fall, from which jury could infer that Kroger had caused the hazard); Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 674 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (holding that affidavit from defendant’s employee stating he had previously cleaned up “a few pieces of ice” was sufficient to create fact issue that defendant had knowledge of water on ground, even though employee testified he had “completely cleaned up the area”).

161 Lopez, 929 S.W.3d at 677.

162 Corbin, 648 S.W.3d at 295.

– 37 –

When a defendant is aware that a certain instrumentality is capable of causing an unreasonably dangerous condition, the defendant has a duty to ensure that said instrumentality does not actually produce the unreasonably dangerous condition.163 If the defendant fails to do so, the defendant’s awareness of the instrumentality and its dangerous propensities serve as evidence of its constructive knowledge of the resulting unreasonably dangerous condition.164 Constructive knowledge can also be established through a failure to follow suggested safety precautions.165

For example, a store owner who knows that an ice machine leaks must ensure that the leaky ice machine “does not create an unreasonably dangerous condition— i.e., a slippery floor.”166 Similarly, the owner of a recreation center who knows that the center’s roof leaks must ensure that the water leaking through the roof does not result in the dangerous condition of a puddle on the floor of its basketball court.167 In City of San Antonio v. Rodriguez, the Texas Supreme Court held that evidence demonstrating that the person in charge of the center knew about the leaks and also knew that it had been raining could allow a jury to infer that the owner had

163 Rodriguez, 931 S.W.2d at 536; Gaytan, 24 S.W.3d at 406.

164 Rodriguez, 931 S.W.2d at 536; Rouhani, 296 S.W.3d at 297.

165 See, e.g., Erevia, 73 S.W.3d at 523 (failure to comply with company policy that called for absorbent mats to be placed around iced barrel displays).

166 Gaytan, 24 S.W.3d at 406.

167 Rodriguez, 931 S.W.2d at 537.

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constructive knowledge of the dangerous condition at issue—namely, the particular puddle of water on the floor.168

In this case, ESA was aware that the refrigerator setup in the Marshalls’ room was capable of causing an unreasonably dangerous condition—namely, an unexpected puddle of water on the linoleum floor. Accordingly, ESA had a duty to ensure that the refrigerator setup did not actually create such a puddle. The evidence overwhelmingly demonstrates that ESA failed to comply with this duty, and ESA’s knowledge of the risks associated with the refrigerator setup constitutes evidence of its constructive knowledge of the specific puddle in which Julia Marshall slipped.

D. ESA’s failure to exercise reasonable care proximately caused Julia Marshall’s injuries.

The causation element of a premises claim requires a plaintiff to show that the

defendant’s act or omission proximately caused her injuries.169 Proximate cause is comprised of two prongs: (1) cause-in-fact and (2) foreseeability.170

Proximate cause can be established by direct or circumstantial evidence and the reasonable inferences that may be drawn from such evidence.171 Expert

168 Id. at 537-38.

169 Daenen, 15 S.W.3d at 99; Corbin, 648 S.W.2d at 296.

170 Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)).

171 Rouhani, 296 S.W.3d at 298 (citing McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903-04 (Tex. 1980)).

– 39 –
testimony is not required when the causal relationship between a condition and an event can be determined by a “layperson’s common understanding and general experience.”172 A plaintiff can satisfy the element of proximate cause by simply presenting evidence “from which reasonable minds could draw an inference that the negligence was a cause in fact of the injury.”173 In Corbin, for example, this element was met simply by virtue of the fact that the plaintiff “fell within a few feet of the grape display.”174
1. The refrigerator setup was a cause-in-fact of Julia Marshall’s injuries.

Cause-in-fact means that the defendant’s act or omission was a substantial factor in causing the plaintiff’s injury, without which the harm would not have occurred.175 It is possible for a single injury to have more than one cause-in-fact.176 A finding of cause-in-fact may be based on either direct or circumstantial evidence.177

172 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); Rouhani, 296 S.W.3d at 298-99 (holding that jury finding of causation was supported by legally sufficient evidence because a layperson could reasonably determine causal link between slick pool deck surface and plaintiff’s fall).

173 City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987).

174 Corbin, 648 S.W.2d at 297.

175 Travis, 830 S.W.2d at 98.

176 Wilson v. Brister, 982 S.W.2d 42, 44 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (internal citation omitted).

177 Rouhani, 296 S.W.3d at 298 (citing Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.

– 40 –

The evidence demonstrates that the refrigerator setup in the Marshalls’ hotel room was a substantial factor in causing Julia Marshall’s injury, without which the harm would not have occurred. Julia was injured when she fell after slipping in a puddle of water that had leaked from the refrigerator and accumulated on the linoleum floor. The accumulation of water created by the refrigerator setup was the cause of her fall. If ESA had not placed an outdated, malfunctioning refrigerator with a propensity to leak on top of the linoleum kitchen floor in the Marshalls’ hotel room, the puddle that caused her to fall would not have been present and she would not have fallen. But for the unreasonably dangerous refrigerator setup in the Marshalls’ hotel room, Julia’s injuries would not have occurred. A reasonable jury could easily conclude that the refrigerator setup was a cause-in-fact of Julia Marshall’s injuries.

2. Julia Marshall’s injuries were foreseeable.

In a premises liability claim, foreseeability means that there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.178 The exact sequence of events that actually occurred does not need to be foreseeable, only the “general danger” that a similar event was likely to happen.179 The question of foreseeability

2003)).

178 City of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)).

179 Travis, 930 S.W.2d at 98; Reynolds, 127 S.W.3d at 33; Nixon v. Mr. Property Mgmt. Co.,

– 41 –

is a practical inquiry based on “common experience applied to human conduct.”180 Here, the unusually high risk of harm posed by the refrigerator setup was the danger of water leaking from the refrigerator and forming a puddle on the slippery linoleum floor underneath, which could cause someone to slip and fall. As explained in greater detail above, ESA was aware of the unusually high risk of harm posed by the refrigerator setup, and of the potential consequences—i.e., that someone could suffer injuries in a fall.181 This is exactly what happened to Julia Marshall. The general character of Julia Marshall’s injuries should thus have been reasonably

anticipated by ESA.

Because the summary-judgment evidence presented by the Marshalls is more than sufficient to create a fact question on the element of proximate causation, summary judgment on this element was precluded as a matter of law.

III. Loss of Consortium Claim

Because the Marshalls produced sufficient evidence to preclude summary judgment on their premises liability claim, Dennis Marshall’s derivative claim for loss of consortium should have survived as well. A spouse’s cause of action for loss of consortium is derivative of the other spouse’s cause of action for negligence

690 S.W.2d 546, 551 (Tex. 1985).

180 Pike, 727 S.W.2d at 518.

181 See Section II(B)(1)(d), supra pp. 33-35.

– 42 –

(including premises liability) resulting in bodily injury.182 Because Dennis Marshall’s claim for loss of consortium is derivative of Julia Marshall’s premises-liability negligence claim, and because genuine issues of material fact preclude summary judgment on Julia Marshall’s claim as explained above, Dennis Marshall’s loss-of-consortium claim should have also survived summary judgment. Accordingly, the trial court’s grant of summary judgment on Dennis Marshall’s claim was also made in error and should also be reversed.

Conclusion and Prayer

For the reasons set forth herein, this Court should reverse the trial court’s grant of summary judgment and remand this case for a trial on the merits.

[signature block on following page]

182 See Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 (Tex. 1994).

– 43 –

Respectfully submitted,

/s/ Rachael K. Jones

Brock C. Akers
Texas Bar No. 00953250
bca@akersfirm.com
THE AKERS FIRM, PLLC
3401 Allen Parkway, Suite 101

Houston, Texas 77019
(713) 877-2500 (Telephone)
(713) 583-8662 (Facsimile)

Kevin Bush

Texas Bar No. 24105564
bush@simonlawfirm.com
SIMON LAW FIRM
5151 Katy Freeway, Suite 140
Houston, Texas 77007
(713) 864-3040 (Telephone)
(713) 864-3044 (Facsimile)

Rachael K. Jones

Texas Bar No. 24090196

rjones@sloanfirm.com
SLOAN, HATCHER, PERRY, RUNGE,
ROBERTSON & SMITH
101 East Whaley Street
Longview, Texas 75606
(903) 757-7000 (Telephone)
(903) 757-7574 (Facsimile)

ATTORNEYS FOR APPELLANTS

– 44 –

Certificate of Compliance

This brief complies with Texas Rule of Appellate Procedure 9.4(i) because it contains 9,712 words (excluding the parts of the brief exempted by this rule).

Signed this 10th day of October, 2018.

/s/ Rachael K. Jones

RACHAEL K. JONES
Attorney for Appellants

– 45 –

Certificate of Service

I certify that on October 10, 2018, a true and correct copy of the foregoing

Appellants’ Brief was served upon the following counsel of record via e-filing, in

accordance with Texas Rule of Appellate Procedure 9.5:

Robert Dubose

rdubose@adjtlaw.com
ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP
1844 Harvard Street
Houston, Texas 77008
Telephone: (713) 523-2358
Facsimile: (713) 522-4553

Peri H. Alkas

peri.alkas@phelps.com

PHELPS DUNBAR LLP
500 Dallas Street, Suite 1300
Houston, Texas 77002
Telephone: (713) 626-1386
Facsimile: (713) 626-1388

ATTORNEYS FOR APPELLEE

ESA MANAGEMENT, LLC

/s/ Rachael K. Jones

RACHAEL K. JONES
Attorney for Appellants

– 46 –

Case No. 01-18-00403-CV

___________________________________________________

In the Court of Appeals of Texas

First District
___________________________________________________

Julia Marshall and Dennis Marshall

Appellants

ESA Management, LLC

Appellee
___________________________________________________

Appellants’ Appendix

___________________________________________________

LIST OF DOCUMENTS

(1) Order Granting Defendant’s Motion for Summary Judgment,

February 16, 2018 (2 C.R. 537) …………………………………………………. Appx. 2

(2) Texas Rule of Civil Procedure 166a …………………………………………… Appx. 3

(3) H.E. Butt Grocery Co. v. Rojas,

No. 13-95-387-CV, 1997 WL 33760912 (Tex. App.—Corpus

Christi Apr. 24 1997, no pet.) (not designated for publication) ……….. Appx. 5

– Appx. 1 –

Rule 166a. Summary Judgment, TX R RCP Rule 166a

Vernon’s Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 8. Pre-Trial Procedure (Refs & Annos)

TX Rules of Civil Procedure, Rule 166a

Rule 166a. Summary Judgment

Currentness

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.

(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.

(e) Case not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate

– Appx. 3 –

Rule 166a. Summary Judgment, TX R RCP Rule 166a

counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.

(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Credits

Oct. 12, 1949, eff. March 1, 1950. Amended by orders of Oct. 1, 1951, eff. March 1, 1952; July 20, 1966, eff. Jan. 1, 1967; July 21, 1970, eff. Jan. 1, 1971; July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990; Aug. 15, 1997, eff. Sept. 1, 1997.

Vernon’s Ann. Texas Rules Civ. Proc., Rule 166a, TX R RCP Rule 166a

Current with amendments received through July 1, 2018Current with amendments received through August 1, 2018

– Appx. 4 –

H.E. Butt Grocery Co. v. Rojas, Not Reported in S.W.2d (1997)

1997 WL 33760912

Only the Westlaw citation is currently available.

NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TX R RAP RULE 47.7, UNPUBLISHED OPINIONS HAVE NO PRECEDENTIAL VALUE BUT MAY BE CITED WITH THE

NOTATION “(not designated for publication).”

OPINION

Opinion ordered not

published. TEX. R. APP. P. 90.

Court of Appeals of Texas,

Corpus Christi-Edinburg.

H.E. BUTT GROCERY COMPANY

Dalia ROJAS.

No. 13-95-387-CV.

April 24, 1997.

On appeal from the County Court at Law Number One of Nueces County, Texas.

Attorneys and Law Firms

R. Clay Hoblit, for H.E. Butt Grocery Company.

Cecile Foy Gsanger and Luis A. Elizondo, for Dalia Rojas.

Before Chief Justice SEERDEN, Justices DORSEY and

CHAVEZ.

OPINION

Opinion by Justice CHAVEZ.

*1 Appellant, H.E. Butt Grocery Company (H.E.Butt), contests a judgment rendered in favor of appellee, Dalia Rojas. Appellee’s cause of action was based on a personal injury sustained after she slipped and fell on dried pinto beans located on the floor of the Corpus Christi Port Ayers H.E.B. store. H.E. Butt appeals the judgment on three points of error. We rule that appellee’s did not waive their hazardous-condition cause of action because the jury charge contained an element necessarily referable to a

hazardous condition theory, and, in the absence of an objection to the charge by H.E. Butt, the missing elements of that theory are deemed found. We hold that appellant’s hazardous condition theory was supported by legally and factually sufficient evidence. Accordingly, we affirm the judgment of the trial court.

On October 16, 1992, Dalia Rojas visited the Port Ayers H.E.B. store. While shopping on the dry foods aisle, she slipped and fell on dried pinto beans. She stated that after falling she “saw beans all over and some young man just came with a shovel and a broom and picked them up real quick.” Her pleadings in this case alleged that H.E. Butt failed to provide a reasonably safe place for its invitees, failed to provide safety devices, failed to make adequate inspections, and failed to warn cunstomers of the condition of the floor.

On March 21, 1995, the jury found both parties negligent and attributed 51% of the negligence to H.E. Butt and 49% of the negligence to Dalia Rojas. H.E. Butt filed a motion for judgment notwithstanding the verdict. The motion was denied and judgment was entered on May 12, 1995. The damages suffered by Dalia Rojas were assessed at $3,300. In accordance with the percentage of fault attributed to her, actual damages were reduced to $1,617. H.E. Butt filed a motion for new trial; however, the motion was overruled. Subsequently, H.E. Butt filed this appeal.

The appellant argues, in its third point of error, that the judgment of the trial court must be reversed and rendered as a take-nothing judgment because appellee’s pleadings support only a hazardous-condition theory, which appellee waived by failing to submit any element necessarily referable to that theory of recovery. H.E. Butt asserts that the appellee’s pleadings required submission of the elements of a hazardous-condition theory.

The requisite elements of a hazardous condition theory of premises liability include: (1) the owner had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk; (3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and, (4) the owner’s failure to use such care proximately caused the plaintiff’s injuries. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983); Warner v. H.E. Butt Grocery Co., 856 S.W.2d 591, 593 (Tex.App.-Corpus Christi 1993, no writ). A cause of action involving recovery under a hazardous-

– Appx. 5 –

H.E. Butt Grocery Co. v. Rojas, Not Reported in S.W.2d (1997)

condition theory must be submitted to the jury with the four elements set forth in Corbin. Keetch v. Kroger Co., 845 S.W.2d. 262, 266 (Tex.1992).

*2 Appellant argues that because this case involved a hazardous condition on their premises, it was necessary that appellee submit the hazardous-condition elements to the jury. The jury charge presented only a general negligence question, “[d]id the negligence, if any, of those named below proximately cause the occurrence in question?” Before it was given to the jury, the court asked if there were any objections to the charge or requested instructions, to which both sides answered no. One fundamental rule of appellate procedure is that complaints must be made of judges’ rulings before relief can be granted. Although issues may be stated that incorporate rulings, the complaint is that the trial judge erred. In order for a ruling of the judge to be complained of on appeal, it must first be pointed out to him by objection or request. TEX.R.APP. P. 52(a). The complaint on appeal must be the same complaint made to the trial judge in order for the appellate court to rule on it.

Preservation of error in the charge is confusing; however, the confusion has been whether an objection or requested instruction is necessary. See, e.g., Matthiessen v. Schaefer, 900 S.W.2d 792, 797 (Tex.App.-San Antonio 1995, writ denied) (noting that preservation of charge error is “an evolving area of the law” and that the Texas Supreme Court “simplified and loosened the prevailing view of the necessity of precise objections to preserve charge error” in the case of State Dept. of Highways v. Payne, 838 S.W.2d 235 (Tex.1992). All agree, though, that the minimum requirement for the preservation of charge error is that an objection must be made.

Rule of Civil Procedure 274 states that “[a] party objecting to a charge must point out distinctly the objectionable matter and the ground of the objection,” and “[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”

In Payne, the supreme court opined concerning preservation of error in a jury charge: “In our State’s procedural jurisprudence, there are no rules more recondite than those pertaining to the preparation of the jury charge…. The rules governing charge procedures are difficult enough; the case law applying them has made

compliance a labyrinth daunting to the most experienced trial lawyer .” 838 S.W.2d at 240. The issue in Payne was whether the State’s objection and requested instruction was sufficient to notify the court that the jury should have been charged on whether there was a premise defect, rather than a special defect. That is, whether the State had preserved the claimed charge error when the court charged on special defect law rather than under premises liability law. The court held that the State’s requested question clearly called the trial court’s attention to the State’s complaint because it was the sole element of premise defect liability missing from the charge. In holding error was preserved, the court said “[t]here should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” Id. at 241.

*3 H.E. Butt argues that they were under no duty to object because the jury charge did not contain elements which were necessarily referable to a hazardous condition cause of action, as required by Rule of Civil Procedure. However, this is not a correct reading or application of Rule 279. Rule 279 states that when a cause of action contains more than one element, but some of those elements are omitted from the charge, the remaining elements can be deemed as found by the trial court if a judgment in favor of that cause of action is entered and the element that was submitted to the jury is “necessarily

referable” to that particular cause of action. 1 As stated in Superior Trucks, Inc. v. Allen, this “necessarily referable” requirement is “designed to give parties fair notice of, and an opportunity to object to, a partial submission.” 664 S.W.2d 136, 144 (Tex.App.-Houston [1st Dist.] 1983, writ ref’d n.r.e.). If an element is not necessarily referable to a particular cause of action, the opposing party has not been put on notice of the plaintiff’s reliance on that cause of action, and therefore an objection to the charge is not required in order to preserve error. Ramos v. Frito Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).

In the present case, however, the facts and pleadings in the case gave all the notice required that appellee was relying on a hazardous condition theory of liability, and that such an instruction should have been tendered. As appellant notes in its own brief, “Appellee’s pleadings support only a hazardous-condition theory of premises liability.” Ultimately, appellant’s reliance on Rule 279 for its argument that no objection was required in order

– Appx. 6 –

H.E. Butt Grocery Co. v. Rojas, Not Reported in S.W.2d (1997)

to preserve error comes down to a misreading of the “necessarily referable” language in the Rule. We should look at the element in the context of the parties’ pleadings and the facts adduced at trial to determine whether the element is necessarily referable to the plaintiff’s cause of action.

Appellant provided supplemental citation to Williams v. Olivo, 912 S.W.2d 319 (Tex.App.-San Antonio 1995, writ granted), as support for its contention that it need not have objected to the improper jury charge to complain on appeal. The Texas Supreme Court has granted two writs of error in that case, and the holding of the San Antonio court may therefore be suspect. In Williams, the plaintiff was injured when he fell from a pipe rack at an oil drilling site and landed on pipe thread protectors that were scattered on the ground, causing severe injury to his back. Id. at 324. The plaintiff sued for negligence and gross negligence, arguing that the drilling rig supervisor failed to maintain the work site in a safe condition, failed to inspect or correct dangerous conditions, failed to warn, failed to provide safety devices, and failed to supervise the work properly. Id. The plaintiff requested jury questions on both negligent activity and premises condition theories of liability. However, only a general negligence question was submitted to the jury. Id. at 325.

*4 The court held,

Appellants were not given fair notice that the submitted issue covered the premises condition ground of recovery in addition to the negligent activity claim. Hence, the premises condition theory was entirely omitted from the charge and Graham was under no duty to object. Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).

Id. at 327. However, in the instant case, there was only one cause of action pled and proved, that of a condition of the premises. The complaint was that there were beans on the floor that Mrs. Rojas slipped on; there was no complaint that H.E.B. was conducting “hazardous activities” in its store. We hold that the Corbin elements are deemed found under Rule 279.

Having held that appellee did not waive a hazardous condition theory of recovery, we now consider appellant’s

argument that a finding of liability under a hazardous condition theory is not supported by legally or factually sufficient evidence. In reviewing a legal sufficiency claim, the court of appeals “considers only the evidence and inferences that tend to support the jury’s finding and disregards all evidence and inferences to the contrary.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). To establish that the appellee presented no evidence to support a negligent activity theory, the record must show that no more than a scintilla of evidence supports one or more of the requisite elements. Id. More than a scintilla of evidence is present where the evidence supporting the finding “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id.

In contrast, factual sufficiency challenges require that we consider and balance all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 777 S.W.2d 442, 445 (Tex.1989); Cantu, 921 S.W.2d at 348. We overrule factual insufficiency points of error unless the evidence supporting a finding is so weak as to be against the great weight and preponderance of the evidence and clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

This case is remarkably similar to Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983). In Corbin, the plaintiff alleged that Safeway’s self-service method of displaying grapes in an open, slanted bin above a green linoleum tile floor resulted in an unreasonable risk of customers slipping on grapes that had fallen or been knocked on the floor. Safeway did not have a walk-off mat in place to lessen the risk of people slipping on spilled grapes. Testimony from Safeway employees provided some probative evidence that the store’s method of displaying grapes posed an unusually high risk, and that Safeway was aware of the risk associated with its grape display. The supreme court held that these facts would support jury findings that the grape display posed an unreasonable risk of foreseeable injury. Id. at 297.

In this case, Appellee’s pleadings alleged that appellant failed to provide a reasonably safe place for its invitees, and failed to provide adequate safety devices to prevent injury. H.E.B. displayed its pinto beans in an open, self-

service bin above an off-white, flecked tile floor. 2 Mr. Moron admitted that the brown and white beans would blend into the color of the tile and be difficult to see. The H.E.B. store did not have a walk-off mat in place

– Appx. 7 –

H.E. Butt Grocery Co. v. Rojas, Not Reported in S.W.2d (1997)

to lessen the risk of people slipping on the beans. Moron admitted knowing that beans sometimes fell onto the floor, and both Moron and Payne testified that spilled beans would be dangerous to people who might step on them. This testimony provides legally and factually sufficient evidence that appellant was aware that their bean display posed an unreasonable risk to customers.

*5 Having found sufficient evidence to support appellee’s hazardous condition theory, we need not address

Footnotes

appellant’s challenges to the sufficiency of the evidence supporting a negligent activity theory. We overrule appellant’s second and third points of error and AFFIRM the judgment of the trial court.

All Citations

Not Reported in S.W.2d, 1997 WL 33760912

Rule 279 states, in relevant part:

When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment. TEX.R. CIV. P. 279.

Moron testified that the tile was “white or beige white off white (sic).” Payne testified that the tile was “light beige or white” and “flecked.” We consider our phrase “off white, flecked” to be an accurate summary of their answers.

– Appx. 8 –

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