Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, August 9, 2011

Premises Liability Suit: Slip & Fall at Store - When is store owner liable for injuries sustained by customer?

PREMISES LIABILITY: SLIP & FALL INCIDENT AT STORE

What are the elements of a slip & fall premises liability claim?

To prevail on a premises liability suit, an invitee-plaintiff must prove: (1) a condition on the premises posed an unreasonable risk of harm; (2) the premises owner had actual or constructive knowledge of the danger; (3) the premises owner did not exercise reasonable care to reduce or eliminate the risk; and (4) the premises owner's failure to use such care proximately caused the plaintiff's injuries. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

SOURCE: Dallas Court of Appeals - 05-09-01310-CV - 8/8/11

In its no-evidence summary judgment motion, [ Defendant - Department Store ] asserted that there was no evidence of the following elements of [ Shopper's ] premises liability claim: (1) a condition on the premises posed an unreasonable risk of harm; (2) [ Defendant - Department Store ] knew or reasonably should have known of the danger; (3) [ Defendant - Department Store ] breached its duty of ordinary care by both (i) failing to adequately warn [ Shopper ] of the condition, and (ii) failing to make the condition reasonably safe; and (4) [ Defendant - Department Store ]'s breach proximately caused [ Shopper's ] injury. See Tex. R. Civ. P. 166a(i); see also Reece, 81 S.W.3d at 814. Thus, unless [ Shopper ] presented evidence creating more than a surmise or suspicion on each element that [ Defendant - Department Store ] challenged, summary judgment is proper. See Tex. R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

In her first issue, [ Shopper ] argues she established a "prima facie" premises liability case. [ Defendant - Department Store ] argues that [ Shopper ] has waived her issues on appeal by failing to meet the briefing requirements because her issues are unsupported by argument and lack citation to the record or legal authority. See Tex. R. App. P. 38.1(h). A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677-78 (Tex. App.-Dallas 2004, pet. denied). On appeal, as at trial, the pro se appellant must properly present its case. Id. If this were not true, a pro se litigant would be given an unfair advantage over those parties represented by counsel. Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex. App.-El Paso 2007, pet. struck). An appellate court has no duty to perform an independent review of the record and applicable law to determine whether there was error, even on behalf of a pro se litigant. Id. Otherwise, we would stray from our role as a neutral adjudicator and become an advocate for that party. Id.

Under her first issue, appellant discusses the following four "elements": (1) "actual or constructive knowledge" followed by the sub-heading "constructive notice"; (2) "unreasonable risk posed"; (3) "unreasonable risk"; and (4) "proximate cause." However, we agree that [ Shopper ] has waived any issue on appeal concerning her second, third, and fourth "elements" because of briefing inadequacies.

Although [ Shopper ] cites authorities under each of her headings, they are cited for legal propositions only. [ Shopper ] fails to apply these legal authorities to the facts of this case. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). Second, there are no references to the record of summary judgment evidence under these headings. See Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Finally, [ Shopper ] does not argue she presented evidence raising a fact issue as to the challenged elements, and thus fails to challenge the granting of a no-evidence summary judgment under the standard set out above. See Brock, 215 S.W.3d at 929 (briefing inadequate where appellant "makes no attempt to analyze the [challenged] order within the context of the statute or case law"). As noted above, we will not make these arguments for her. See Martinez, 218 S.W.3d at 844; see also Tex. R. App. P. 38.1(h).

We conclude [ Shopper's ] first issue presents nothing for review as to her second, third, and fourth elements. Because her brief does not effectively present a challenge as to whether the trial court properly granted summary judgment based on her failure to raise a fact issue as to the first, third, and fourth elements of a premises liability claim, we must affirm the trial court's judgment on no-evidence as to these grounds. See Tex. R. App. P. 38.1(h) (error on appeal waived by inadequate briefing); Cates, 927 S.W.2d at 625 (when appealing general summary judgment, party must argue that every ground of summary judgment motion is erroneous); Rogers, 772 S.W.2d at 79 (appellate court affirms summary judgment if any theory is meritorious); Cruikshank v. Consumer Direct Mortg., Inc., 138 S.W.3d 497, 502-03 (Tex, App.-Houston [14th Dist.] 2004, pet. denied) (a general issue statement that trial court erred in granting summary judgment preserves complaint on appeal only if specific ground challenged on appeal is supported by argument; citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)); see also Reece, 81 S.W.3d at 814; Gonzalez, 968 S.W.2d at 936; Keetch, 845 S.W.2d at 264. Thus, we need not address whether [ Shopper ] raised an issue of fact to whether [ Department Store ] had actual or constructive knowledge of the danger. See Rogers, 772 S.W.2d at 79.
We affirm the trial court's judgment.

SOURCE: Dallas Court of Appeals - 05-09-01310-CV - 8/8/11

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