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Date: 02-23-2017

Case Style: Aida Collins-Basemore v. Home Depot U.S.A., Inc.

Case Number: 02-16-000234-CV

Judge: Mark T. Pittman

Court: Texas Court of Appeals, Second District on appeal from the Court Court at Law No. 2, Tarrant County

Plaintiff's Attorney: Kevin Wiley

Defendant's Attorney: Stephen R. Marsh


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This is a premises liability case. Appellant Aida Collins-Basemore sued
Appellee Home Depot U.S.A., Inc. (Home Depot) after she was injured in a
Home Depot store. The trial court granted summary judgment for Home Depot,
and Collins-Basemore now appeals. In one issue, Collins-Basemore asks
1See Tex. R. App. P. 47.4.
whether the trial court erred by granting Home Depot’s no-evidence motion for
summary judgment on its asserted ground that there was no evidence it had
notice of the condition that caused her injuries. We affirm.
Facts and Procedural Background
Collins-Basemore alleged in her petition that while shopping in a Home
Depot store, she severely lacerated her thumb in attempting to retrieve a mirror
from a shelf of mirrors. She alleged that, unbeknownst to her, one of the mirrors
on the shelf had been broken and that this broken mirror lacerated her thumb.
She asserted a negligence claim and sought damages for past and future
medical expenses, past and future pain and suffering, past and future mental
anguish, and attorney’s fees.
Home Depot filed a combined traditional and no-evidence motion for
summary judgment. As no-evidence grounds, Home Depot asserted that there
was no evidence that it broke the mirror, that it knew the mirror had been broken,
or that the broken mirror had been present long enough for Home Depot to be
charged with having discovered it. As a traditional ground, Home Depot asserted
that it did not have notice of the condition of the broken glass.
As summary judgment evidence, Home Depot attached copies of Collins-
Basemore’s answers to Home Depot’s request for admissions and responses to
Home Depot’s interrogatories, as well as her deposition testimony. In its request
for admissions, Home Depot asked Collins-Basemore to admit that she did not
know who broke the mirror, when it was broken, or how long it had been on the
shelf after it was broken. She denied the admissions on the basis that she was
“without information to admit or deny.” Further, she admitted that Home Depot
did not have notice that the mirror was broken prior to her injury.
In Home Depot’s interrogatories, it asked Collins-Basemore to state all
facts upon which she asserted that Home Depot knew or should have known
about the broken mirror. In response, she answered that “the company should
have frequently checked these displays or moved this section to a custom
service area. Had Home Depot done any of these things the incident would not
have happened.”
At her deposition, Collins-Basemore testified that she had no idea who
broke the mirror or how long it had been broken before she encountered it. She
stated that she had no way of seeing the mirror was broken before the box
containing it was pulled out, and the broken mirror was “[a]bsolutely not” obvious
to anybody walking by.
Challenging Home-Depot’s no-evidence grounds in her summary judgment
response, Collins-Basemore asserted that Home Depot’s constructive notice of
the broken mirror replaced its need to have actual notice of that dangerous
condition. She also relied on her deposition testimony attached to Home Depot’s
summary judgment motion, where she testified that Home Depot should have
frequently checked the mirror display case. With respect to the traditional
motion, Collins-Basemore contended that Home Depot had failed to produce any
testimony that an employee of the store frequently inspected the condition of the
mirror display case.
After conducting a hearing on the motion, the trial court granted summary
judgment for Home Depot without specifying the grounds for its ruling.
Standard of Review
A defendant is entitled to traditional summary judgment on an affirmative
defense if the defendant conclusively proves all the elements of the affirmative
defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010),
cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c). To
accomplish this, the defendant-movant must present summary judgment
evidence that conclusively establishes each element of the affirmative defense.
See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The trial court must grant the motion
unless the nonmovant produces summary judgment evidence that raises a
genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Sudan v. Sudan,
199 S.W.3d 291, 292 (Tex. 2006).
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of rule
166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
appellant failed to produce more than a scintilla of evidence under that burden,
then there is no need to analyze whether the appellee’s summary judgment proof
satisfied the rule 166a(c) burden. Id.
Collins-Basemore asserted a premises liability claim against Home Depot.
See Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016)
(describing the differences between a premises liability claim and a negligence
claim when a person is injured on another’s property and providing that “[w]hen
the injury is the result of the property’s condition rather than an activity, premisesliability
principles apply”). “Under premises-liability principles, a property owner
generally owes those invited onto the property a duty to make the premises safe
or to warn of dangerous conditions as reasonably prudent under the
circumstances.” Id. When, as here, the injured party is an invitee, the elements
of a premises liability claim are as follows:
(1) Actual or constructive knowledge of a condition on the premises
by the owner or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to
reduce or eliminate the risk; and
(4) That the owner or occupier’s failure to use such care proximately
caused the plaintiff’s injury.

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); see Am. Indus. Life
Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 135 (Tex. App.—Houston [14th Dist.]
2001, pet. denied) (“A person is an invitee only where the owner or occupier
invites the person to enter the premises and where the person’s visit involves at
least a potential pecuniary profit to the owner or occupier”).

“Actual knowledge ‘requires knowledge that the dangerous condition
existed at the time of the accident, as opposed to constructive knowledge which
can be established by facts or inferences that a dangerous condition could
develop over time.’” Duncan v. First Tex. Homes, 464 S.W.3d 8, 16 (Tex. App.—
Fort Worth 2015, pet. denied) (quoting City of Corsicana v. Stewart, 249 S.W.3d
412, 414–15 (Tex. 2008)). To show constructive notice of a dangerous condition,
the injured party must prove that “‘It is more likely than not that the condition
existed long enough to give the premises owner a reasonable opportunity to
discover it.’” Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 16 (Tex. 2014)
(quoting Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)); see
Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.—
Texarkana 1998, no pet.) (stating that to establish an owner’s actual or
constructive knowledge of a dangerous condition on the floor, an invitee may
prove (1) that the owner put the foreign substance on the floor; (2) that the owner
knew that it was on the floor and negligently failed to remove it; or (3) that the
substance was on the floor so long that, in the exercise of ordinary care, it should
have been discovered and removed).

Collins-Basemore filed no evidence as part of her summary judgment
response. Rather, she relied entirely on references to the summary judgment
evidence provided by Home Depot in support of its motion. A review of her
discovery responses and deposition testimony provides no evidence that Home
Depot had actual knowledge of the broken mirror. See, e.g., Duncan,
464 S.W.3d at 16–17 (“When determining if a premises owner has actual
knowledge of a condition that presents an unreasonable risk of harm, courts
generally consider whether the owner had received reports of prior injuries or
reports of the potential danger presented by the condition.”). Nor does the
summary judgment record contain any evidence relating to Home Depot’s
constructive knowledge of the condition, such as how long the broken mirror had
been there before Collins-Basemore was injured by it. To the contrary, Collins-
Basemore admitted that she had no information about how long the mirror had
been there, and she admitted that the condition was not obvious to anyone
walking by. Indeed, her own deposition testimony was that Home Depot could
not have discovered the broken mirror until the box containing the mirror was
actually pulled off the shelf. She only argued that Home Depot should have
inspected the area more frequently, but she offered no evidence of how often
Home Depot did inspect the area.
As a result, Collins-Basemore produced no evidence raising an issue of
material fact about whether Home Depot actually knew or had constructive
knowledge of the broken mirror. Accordingly, the trial court did not err by
granting the no-evidence summary judgment for Home Depot. See Hamilton,
249 S.W.3d at 426. We overrule Collins-Basemore’s issue.

Outcome: Having overruled Collins-Basemore’s sole issue, we affirm the trial court’s

Plaintiff's Experts:

Defendant's Experts:


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