Karen Smith v. Luby's, Inc. d/b/a Luby's Cafeteria--Appeal from 190th District Court of Harris County

Affirmed and Memorandum Opinion filed February 15, 2005

Affirmedand Memorandum Opinion filed February 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00745-CV

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KAREN SMITH, Appellant

V.

LUBY S, INC. D/B/A LUBY S CAFETERIA, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 03-24282

M E M O R A N D U M O P I N I O N

Karen Smith sued Luby s, Inc. for negligence based on premises liability after a chair she was sitting on in the cafeteria s dining room allegedly collapsed, injuring her. Luby s moved for a no-evidence summary judgment, which the trial court granted. On appeal, Smith contends the trial court erred in allegedly ruling she could not use Luby s interrogatory answers to support her response, and in ruling she failed to raise a genuine issue of material fact. Because we find that Smith did not raise a genuine issue of material fact concerning whether Luby s had actual or constructive knowledge of a dangerous condition on the premises, we affirm.

I. Background

In her petition, Smith alleged that, while at a Luby s Cafeteria located in Baybrook Mall, she was injured when a chair she was using suddenly and unexpectedly collapsed, causing her to fall to the ground. She alleged the chair was defective and had not been properly maintained, and that defective rollers on the chair posed a dangerous condition on Luby s premises. Smith also alleged Luby s had actual or constructive knowledge of these conditions as demonstrated by its use of the chair in the main area of the dining room of the restaurant. Smith claimed she injured her back and body generally, and suffered anxiety, pain and illness.

Luby s moved for a no-evidence summary judgment on the sole ground that Smith had no evidence that Luby s had actual or constructive knowledge of a dangerous condition on its premises. In her response, Smith argued that Luby s answers to interrogatories directed to its duty to inspect the chairs raised a fact issue on this element. In response to Interrogatory No. 6, which asked about examinations, inspections, or maintenance conducted on the chairs in the last five-year period, Luby s gave this answer:

Defendant objects to this request as overly broad. Subject thereto, all Luby s employees have responsibility for maintaining the premises, including the dining room chairs. Regarding chairs, floor crew employees wipe down the chairs daily, inspect the tables bases, chair legs, chair seats and chair backs. Employees are trained and instructed that it is their joint responsibility as they travel throughout the restaurant in performance of their duties to continually inspect in order to detect any spills, debris, or other conditions. Finally, the management of each restaurant conducts periodic inspections of the premises.

In Interrogatory No. 10, Smith asked what procedures Luby s follows in inspecting, repairing, and maintaining the chairs used on its premises. Luby s responded as follows:

Cleaned and inspected daily. Regarding chairs, floor crew employees wipe down the chairs daily, inspect the tables bases, chair legs, chair seats and chair backs. If any problems are encountered, the chair is taken out of service.

On June 14, 2004, the trial court granted Luby s motion and entered a final judgment that Smith take nothing against Luby s. This appeal followed.

II. Analysis of Smith s Issues

A. Smith Fails to Demonstrate Error Regarding Use of Interrogatories.

In her first issue, Smith contends the trial court erred in allegedly ruling that she could not use Luby s interrogatory answers in response to Luby s no-evidence motion for summary judgment. However, the record contains nothing to indicate that Luby s ever objected to their use or that the trial court ever made the ruling of which Smith complains. Nor is there any indication the trial court did not consider the interrogatory answers. Indeed, the trial court s order states that, in ruling on Luby s motion, it considered the pleadings, the motion and the response. Smith attached Luby s interrogatory answers to her response and incorporated them into her response. Therefore, we presume the trial court did consider the interrogatory answers. Smith presents no error for us to review, and we overrule her first issue.

B. Smith Failed to Raise a Genuine Issue of Material Fact on Actual or Constructive Knowledge of a Dangerous Condition on Luby s Premises.

In her second issue, Smith contends Luby s two interrogatory answers raised a genuine issue of material fact concerning whether Luby s had actual or constructive knowledge of the alleged dangerous condition of its premises. We apply the standard of review appropriate to a no-evidence summary judgment motion. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 51 (Tex. 2003).

Smith contends that Luby s interrogatory answers address[] the issue of its duty to inspect the premises, including the chairs on the premises, and therefore raise a genuine issue of material fact. In support of this claim, Smith contends generally that a premises owner or occupier owes to invitees a duty to inspect the premises for defects or other dangerous conditions, and if a reasonably careful inspection would reveal any defects or conditions, the premises owner or occupier is charged with constructive knowledge that the defect or condition exists. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Burkett v. Welborn, 42 S.W.3d 282, 289 (Tex. App. Texarkana 2001, no pet.). Although not expressly stated, Smith appears to be arguing that, because Luby s had a duty to inspect the premises and did so, it either knew or should have known the chair was defective. We reject this premise.

It is undisputed that Smith was Luby s invitee, and as such, Luby s owed her a duty to exercise reasonable care to protect her from dangerous conditions in its cafeteria that were known or reasonably discoverable. See Wal-Mart Stores, Inc. v Reece, 81 S.W.3d 812, 814 (Tex. 2002); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). However, as these cases also make clear, this duty did not make Luby s an insurer of her safety. See Reece, 81 S.W.3d at 814; Daenen, 15 S.W.3d at 101.

To prevail on a claim for premises liability, one of the things Smith must prove is that Luby s had actual or constructive knowledge of a dangerous condition on the premises. See Reece, 81 S.W.3d at 814; Daenen, 15 S.W.3d at 99.[1] In premises cases, constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. Daenen, 15 S.W.3d at 102 03. This rule is often referred to as the time-notice rule, and is firmly rooted in our jurisprudence. Reece, 81 S.W.3d at 815.

The time-notice rule is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition. Id. at 816. Without some temporal evidence, the factfinder has no basis upon which to reasonably assess the opportunity the premises owner had to discover the dangerous condition. Id. What constitutes a reasonable time for a premises owner to discover a dangerous condition necessarily depends on the facts and circumstances of the case; the proximity of a defendant s employee to the condition may be relevant to the analysis. Id. However, before liability can be imposed on the premises owner or occupier for failing to discover and rectify, or warn of, the dangerous condition, there must be some evidence of how long the hazard was there. Id. Otherwise, owners or occupiers would face strict liability for any dangerous condition on their premises, an approach our supreme court has clearly rejected. Id.

Luby s interrogatory answers contain no evidence that it had actual knowledge of the alleged defective condition of the chair. Therefore, to sustain Smith s issue, we must find that the interrogatory answers raise a fact issue regarding Luby s constructive knowledge of the alleged defective condition. As we have explained, constructive knowledge can be established by showing that the condition existed long enough for the owner to have discovered it upon reasonable inspection. However, Luby s interrogatory answers contain no evidence raising a fact issue on the length of time the alleged condition may have existed. At best, the evidence merely indicates that it was possible for Luby s to have discovered the alleged defective chair roller, not that Luby s should have discovered it, and this is not sufficient. See Reece, 81 S.W.3d at 816; Wal-Mart Stores, Inc. v. Diaz, 109 S.W.3d 584, 589 (Tex. App. Fort Worth 2003, no pet.). Moreover, Smith presented no evidence that the chair was, in fact, defective or that the defect was one that could have been discovered upon inspection. On these facts, we decline to hold that the trial court erred in granting Luby s no-evidence summary judgment motion. We overrule Smith s second issue.

III. Conclusion

The trial court s judgment is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

[1] The other elements of a premises liability claim are that the condition posed an unreasonable risk of harm; that the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and that the owner or occupier s failure to use such care proximately caused the plaintiff s injury. See Daenen, 15 S.W.3d at 99.