Jose Herrera v. Tricon Global, Inc.; Tricon Global Restaurants, Inc.; Tricon International; KFC Corporation; Tricon Restaurant Services Group, Inc. all d/b/a Kentucky Fried Chicken--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00440-CV
Jose HERRERA,
Appellant
v.
TRICON GLOBAL, INC., Tricon Global Restaurants, Inc.,
Tricon International, KFC Corporation, and Tricon Restaurant Services Group, Inc.,
all d/b/a Kentucky Fried Chicken,
Appellees
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-00583
Honorable Pat Boone, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: March 10, 2004

AFFIRMED

Jose Herrera appeals the summary judgment rendered against him in his premises liability suit against Tricon Global, Inc., Tricon Global Restaurants, Inc., Tricon International, KFC Corporation, and Tricon Restaurant Services Group, Inc., all d/b/a Kentucky Fried Chicken (collectively "KFC"). Because Herrera presented no evidence that defendants had actual or constructive knowledge of the dangerous condition, we affirm.

Herrera was injured when he slipped and fell in some grease while delivering chicken at a Kentucky Fried Chicken store. One of KFC's grounds for summary judgment was that there was no evidence KFC had actual or constructive knowledge the grease was on the floor. See Tex. R. Civ. P. 166a(i) (no-evidence motion for summary judgment); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (to prevail on premises liability claim, invitee must establish, inter alia, that the owner or occupier of the premises had actual or constructive knowledge of an unreasonably dangerous condition on the premises). To prevail on this ground, Herrera was required to produce evidence that "(1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

The summary judgment evidence consists of the deposition and interrogatory answers of Herrera and the deposition of Herrera's medical expert. Herrera testified that KFC provided Tyson keys to its stores so that chicken deliveries could be made when the stores were closed. On the day Herrera was injured, he arrived at a KFC store around 7:00 a.m.; the store was closed and no employees were present. After unloading about thirty crates of chicken and stacking them on the ground, Herrera unlocked the front door of the store and walked through to the back door. There he saw "a lot" of grease on the floor inside the door and in the kitchen area. Herrera testified that he encountered greasy floors at some of his delivery stops but had never before seen them at this particular store. He picked up as much as he could with pieces of cardboard but, he testified, "[i]t would be impossible to clean it all up." Then he opened the back door and saw "a lot more grease on the outside," going from the door to the trash dumpster. Herrera stated it appeared the grease had come off something that had been taken from the kitchen to the dumpster. Again, Herrera cleaned up as much of it as he could but could not do a thorough job, both because there was so much and because he was on a tight delivery schedule. Using a dolly, Herrera then started taking the crates of chicken in through the back door to the freezer in the kitchen. As he was entering the back door on what was probably his fourth trip, Herrera slipped in the grease, fell, and injured his back.

Herrera contends that, taking his testimony as true and indulging every reasonable inference in his favor, there is sufficient evidence to raise a genuine issue of fact as to notice. We disagree. Any inference that KFC employees placed the grease on the floor or actually knew the grease was on the floor is based in part on the assumption that the grease was on the floor when the store closed and KFC employees left for the night. There is no evidence in the record to support this assumption. (1) Accordingly, we affirm the trial court's judgment.

Sarah B. Duncan, Justice

1. One could as easily speculate that the grease was spilled by an independent contractor cleaning crew that arrived after KFC's employees left or by another supplier with a key to the store who had made a delivery before Herrera's.