CYTRINA DIANNE BOWEN AND LOU BOWEN, Appellants v. SABRE REALTY MANAGEMENT, INC., Appellee

AFFIRM and Opinion Filed April 21, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00499-CV
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CYTRINA DIANNE BOWEN AND LOU BOWEN, Appellants
V.
SABRE REALTY MANAGEMENT, INC., Appellee
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On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-06-18403-E
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MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and FitzGerald
Opinion By Justice O'Neill
        Appellants Cytrina Dianne Bowen and Lou Bowen sued appellee Sabre Realty Management, Inc. for negligence arising out of injuries Cytrina sustained when she slipped and fell on a slippery salt and sand substance allegedly left on the ground by Sabre Realty. Sabre Realty filed a first amended no-evidence motion for summary judgment, which the trial court granted. In a single issue, appellants claim the trial court erred in granting the no-evidence motion for summary judgment. We affirm.
        On or about December 28, 2004, Cytrina slipped and fell on the stairs outside the Sabre Realty office building where she worked. She reported the incident to management and alleged the sand and salt mixture, commonly known as ice melt, caused her to fall and sustain injuries. Sabre Realty admitted to putting ice melt on the steps in front of the building on December 23, 2004 because of naturally occurring ice accumulation. A Sabre Realty employee also placed a walking mat on the right side of the stairs; however, when Cytrina's accident occurred, she was walking up the left side of the stairs.
        She filed a premises liability suit against Sabre Realty as a business invitee and alleged Sabre Realty breached its duty of ordinary care by failing to adequately warn her of the dangerous condition and failing to make the condition reasonably safe. To recover damages in a slip-and-fall case, a plaintiff must prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. See Wal-Mart Store, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Sabre Realty filed an amended no-evidence motion for summary judgment alleging Cytrina failed to produce any evidence of elements two, three, and four. However, it mainly focused its argument on element two and argued the ice melt did not create an unreasonable risk of harm. The trial court granted the no-evidence motion for summary judgment, and this appeal followed.
        When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of a plaintiff's claim, the burden shifts to the plaintiff to present enough evidence to raise a genuine issue of material fact on the challenged elements. Tex. R. Civ. P. 166a(i); Martin v. Estates of Russell Creek Homeowners Ass'n, Inc., 251 S.W.3d 899, 902 (Tex. App.-Dallas 2008, no pet.). If the plaintiff does not raise a genuine issue of material fact, the trial court must grant the motion. Id. If the trial court's order does not specify the grounds on which it granted summary judgment, “we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
        When reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard of review that is applied when reviewing a directed verdict. Martin, 251 S.W.3d at 902. Under that standard, we must determine whether the nonmovant produced more than a scintilla of evidence to raise a genuine issue of material fact concerning each of the elements for which the movant asserts there is no evidence. Id. A party submits less than a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.
        To support their argument that ice melt poses an unreasonably risk of harm, appellants first rely on a statement in Sabre Realty's no-evidence summary judgment motion. Sabre Realty stated in paragraph seventeen of its motion that “plaintiff Cytrina Bowen's injuries resulted from the fact that naturally accumulated ice and a salt like substance was present on the stairs near the entrance of the Premises. Although this condition arguably posed a risk of harm . . ., it did not, as a matter of law, pose an unreasonable risk of harm.” Appellants contend that because Sabre Realty concedes the source of the sand/salt mixture posed some risk, a fact issue exists as to what degree. We disagree. First, proper summary judgment evidence consists of affidavits, admissions, stipulations of the parties, authenticated or certified public records, deposition transcripts, and interrogatory answers. Bakali v. Bakali, 830 S.W.2d 251, 256 (Tex. App.-Dallas 1992, no writ). The motion for summary judgment itself is not summary judgment evidence. Id. Further, conditions that present risks are not necessarily unreasonably dangerous. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex. 2004). Thus, Sabre Realty's statement in its motion, even if we considered it, is not evidence that ice melt is unreasonably dangerous or poses an unreasonable risk of harm.
        Appellants further rely on Cytrina's affidavit in which she stated she slipped on a mixture of sand and salt Sabre Realty put on the stairs. She further stated the sand and salt was slippery and should not have been on the steps. Again, this is no evidence that ice melt as a product poses any unreasonable risk of harm. Conclusory and speculative statements in an affidavit are insufficient to raise a genuine issue of material fact on the challenged element of whether ice melt posed an unreasonable risk of harm. See, e.g., Eubanks v. Pappas Rest., Inc., 212 S.W.3d 838, 841 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (holding conclusory and speculative statements in an affidavit that the “slime,” “mud,” or “slimy mud” was the result of the landscaping crew's negligence in the area was insufficient to meet summary judgment burden). Thus, we conclude her affidavit, stating she fell on ice melt that Sabre Realty should not have placed outside the building, is no evidence that ice melt posed an unreasonable risk of harm.
        Because appellants failed to bring forth some evidence of one element of their premises liability claim, the trial court did not err in granting Sabre Realty's no-evidence motion for summary judgment. Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
080499F.P05