Leandra Maughon v. ARMC, L.P., d/b/a Abilene Regional Medical Center--Appeal from 42nd District Court of Taylor County

Opinion filed August 23, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00049-CV

__________

   LEANDRA MAUGHON, Appellant

V.

ARMC, L.P., D/B/A ABILENE REGIONAL MEDICAL CENTER, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 45,837-A

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

LeAndra Maughon appeals from the trial court=s take-nothing summary judgment in favor of ARMC, L.P., d/b/a Abilene Regional Medical Center on her premises liability claim. In a single appellate issue, Maughon asserts that the trial court erred in granting Abilene Regional=s traditional and no-evidence motions for summary judgment. Because no summary judgment evidence exists on an essential element of Maughon=s premises liability claim B that Abilene Regional had actual or constructive knowledge of the alleged dangerous condition B we affirm.

Background

This is a slip-and-fall/trip-and-fall case. In her petition, Maughon alleged that, on or about July 18, 2002, while she was a patient at Abilene Regional, she fell as she was getting out of the shower in her hospital room. She alleged that, as she was exiting the shower, Ashe caught part of her foot on the cover of the drain which was not properly attached, causing her to fall.@ She further alleged that the condition of the shower drain posed an unreasonably dangerous condition on the premises. Maughon sought to recover damages for injuries that she allegedly received in the fall.

The record shows that Maughon was in Room 405 of the hospital at the time of the alleged incident. Abilene Regional moved for traditional and no-evidence summary judgments on the ground that it did not have actual or constructive knowledge of the alleged unreasonably dangerous condition B the condition of the shower drain cover or drain grate in Room 405 of the hospital B before the incident involving Maughon. Maughon filed a response to Abilene Regional=s traditional and no-evidence motions for summary judgment. Following a hearing, the trial court entered an order granting summary judgment to Abilene Regional. The trial court=s order did not specify whether it was granting the traditional motion, the no-evidence motion, or both motions.

Standard of Review

Where, as here, a trial court=s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We will first review the trial court=s summary judgment under the no-evidence motion for summary judgment standards set forth in Tex. R. Civ. P. 166a(i). We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we review the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); see also Goodyear Tire & Rubber Co. v. Mayes, No. 04-0993, 2007 WL 1713400 (Tex. June 15, 2007). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element of the claim. Rule 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Rodriguez, 92 S.W.3d at 506. We may not consider any evidence presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). If Maughon failed to meet her Rule 166a(i) burden, then there is no need to address whether Abilene Regional satisfied its burden for obtaining a traditional summary judgment under Tex. R. Civ. P. 166a(c).

Premises Liability

Maughon was Abilene Regional=s invitee at the time of the alleged incident. As such, Abilene Regional owed Maughon a duty to exercise reasonable care to protect her from dangerous conditions in the hospital that Abilene Regional knew about or should have known about. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). To recover damages in a premises liability case, Maughon had to prove the following: (1) that Abilene Regional had actual or constructive knowledge of the condition of the shower drain cover in Room 405; (2) that the condition of the shower drain cover posed an unreasonable risk of harm; (3) that Abilene Regional did not exercise reasonable care to reduce or eliminate the risk; and (4) that Abilene Regional=s failure to use such care proximately caused Maughon=s injuries. Gonzalez, 968 S.W.2d at 936; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Additionally, an owner or occupier of a premises, such as Abilene Regional, is not liable for a dangerous condition caused by deterioration of the premises unless it knew of or by reasonable inspection would have discovered the deterioration. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).

Abilene Regional=s no-evidence summary judgment challenged the first element of Maughon=s premises liability claim. Thus, under Rule 166a(i), Maughon had the summary judgment burden to produce more than a scintilla of evidence establishing that Abilene Regional had actual or constructive knowledge of the condition of the shower drain cover in Room 405 before Maughon=s fall. See Ridgway, 135 S.W.3d at 600.

The Summary Judgment Record

In response to Abilene Regional=s motions for summary judgment, Maughon presented excerpts from the deposition of Dave Dionne, a maintenance technician at Abilene Regional. Maughon also presented the affidavit of and excerpts from the deposition of her liability expert, George Greene. In arriving at his opinions, Greene relied on Dionne=s testimony.

Dionne testified that he had worked as a maintenance man for Abilene Regional for fourteen years. Dionne said that he had worked on stopped up shower drains in the past. He explained that the shower drain covers were attached to the shower drains with steel clips. He said that the steel clips attached to a rubber boot on the drain. Dionne testified that the drain covers were Avery solid@ until they were removed the first time. Dionne explained that it was necessary to remove drain covers to work on stopped up drains. He said that he removed the drain covers by placing a screwdriver in the drain and popping up the cover. Dionne said that, after he removed the drain covers, he placed a Asnake@ in the drain to unclog it. Dionne testified that, on occasion, he had trouble getting the drain covers to stay in place after he had removed them to work on clogged drains. Dionne said that, on these occasions, he used silicone to reattach the drain covers to the drains and that the drain covers stayed in place after using the silicone.

Greene, a registered professional engineer, referred to the drain covers as drain strainers in his deposition and as drain grates in his affidavit. He testified that Abilene Regional had knowledge that drain strainers would come loose and would have to be repaired with various things, such as silicone. In his affidavit, Greene relied on Dionne=s testimony:

There is evidence in this case that prior to [Maughon=s] fall the maintenance staff at the hospital had encountered problems with loose shower drain grates. Specifically, they would encounter this problem when removing drain grates to service the drains and would sometimes have a problem getting the grates to fit snugly back into position. Dave Dionne, a hospital maintenance man, testified that when that situation would occur he would attempt to remedy the problem by using silicone sealant as an adhesive to secure the drain grate.

In his deposition, Greene testified that, because Abilene Regional had the knowledge that drain strainers would come loose, Abilene Regional should have tested or checked the drain strainers to see if they were loose. Greene also said that Abilene Regional should have replaced all loose drain strainers with new drain strainers.

Greene stated in his affidavit that he inspected the drain in question two and one-half years after Maughon=s fall. He also stated that his inspection Areveal[ed] severe corrosion of the drain pipe into which the drain grate should fit.@ Greene further stated that, based on the fact that the hospital was twenty years old, Ait [was] clear that there was severe corrosion in the drain pipes which significantly predated Ms. Maughon=s fall.@ Greene gave a similar opinion in his deposition testimony. He testified that, based on the age of the drains, the drain grate strainers were wearing out and coming loose before the date of Maughon=s fall. He stated that, A[i]n other words, what=s happening is these things are wearing out, they=re getting loose, and that=s not -- it=s just the nature of how this thing will fail.@ In his affidavit, he stated that, in his opinion, Athere existed a condition at the hospital which significantly predated Ms. Maughon=s fall in which the drain pipes and drain grates were suffering wear and deterioration to the point that the drain grates were becoming loose in their attachment to the drain body.@

In his affidavit, Greene stated that the loose drain grates created a dangerous situation because patients standing on the grates could dislodge them when stepping out of the shower. Greene concluded his affidavit with the following opinion:

It is my further opinion that this condition could have been easily discovered by any reasonably careful inspection of the shower drain grates and their attachment to the drain body. Such an inspection would have revealed the significant corrosion and wear at the contact point between the grate and the drain body and the increasingly precarious retention of the drain grate in the drain body. This finding would have made it easily foreseeable that under the circumstances existing prior to [Maughon=s] fall, the drain grate could be dislodged by a patient stepping out of the shower, thus causing a fall and possible injury.

Analysis

Maughon argues that the summary judgment evidence raised a fact issue on whether Abilene Regional had actual or constructive notice of the loose shower drain cover or grate in Room 405. Based on Dionne=s testimony, Maughon asserts that, before her fall, the hospital knew Athat shower drain grates in patient rooms were deteriorating, becoming loose in their attachment, and had to be glued down to stay in place.@ Maughon also relies on Greene=s opinions regarding the deterioration of the shower drains and drain grates at the hospital. She asserts that Greene=s testimony and affidavit established that the loose shower drain grate in Room 405 Acould have been easily discovered by any reasonably careful inspection of the shower drain grates and their attachment to the drain body.@

Applying the above standard of review, we must review the evidence in the light most favorable to Maughon and disregard all contrary evidence and inferences. King Ranch, 118 S.W.3d at 750-51. Dionne=s testimony did not provide any evidentiary support for Maughon=s contention that the shower drain grates were becoming loose due to deterioration. Dionne testified that, on occasion, he had trouble getting shower drain covers to stay in place after he had removed them to work on stopped up drains. On those occasions, Dionne used silicone to reattach the drain cover to the drain. Thus, Dionne=s testimony established that some shower drain covers would not stay in place B in the absence of attaching them with silicone B once they were removed from the shower drain. However, there was no summary judgment evidence that Dionne or any other Abilene Regional employee had ever removed the shower drain cover in Room 405 to work on a clogged drain or for any other reason.

There was no summary judgment evidence that any shower drain covers had come loose at the hospital for any reason other than removing them to work on the drains. Thus, Maughon did not present any summary judgment evidence that the shower drain cover in Room 405 had come loose due to deterioration.[1] Greene stated that, in his opinion, before Maughon=s fall, the shower drain grates were becoming loose due to deterioration and that the loose condition of the grates Acould have been easily discovered by any reasonably careful inspection.@ However, there was neither summary judgment evidence that the shower drain grate in Room 405 was loose before Maughon=s fall nor summary judgment evidence that an inspection of the shower drain grate in Room 405 before Maughon=s fall would have demonstrated that the shower drain grate was loose.

Maughon did not present any summary judgment evidence establishing that Abilene Regional had actual or constructive knowledge of the loose shower drain cover in Room 405 before her fall.

Therefore, she did not meet her summary judgment burden under Rule 166a(i). Ridgway, 135 S.W.3d at 600. The evidence presented by Abilene Regional in support of its traditional motion for summary judgment did not create a fact issue on the knowledge issue.[2] Because Maughon failed to meet her burden under Rule 166a(i), the trial court did not err in granting summary judgment to Abilene Regional, and we need not consider whether Abilene Regional satisfied its burden for obtaining a traditional summary judgment under Rule 166a(c). Tex. R. App. P. 47.1. We overrule Maughon=s appellate issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

August 23, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Although Maughon describes the details of her fall in her appellate brief, the record contains no summary judgment evidence, such as excerpts from her deposition or an affidavit from her, describing the fall.

[2]Abilene Regional presented summary judgment evidence showing a lack of loose shower drain covers before the incident involving Maughon.