Norma Hernandez v. Ramona Perez and Jose Perez ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-389 CV ____________________

NORMA HERNANDEZ, Appellant

V.

RAMONA PEREZ and JOSE PEREZ, Appellees

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On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 21,697

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MEMORANDUM OPINION  

Appellant Norma Hernandez appeals a summary judgment granted in favor of appellees Ramona and Jose Perez (the "Perezes"). In her two issues, Hernandez argues the trial court erred in dismissing her premises defect cause of action because she alleged two unreasonably dangerous conditions and there existed a genuine issue of material fact as to whether she had actual knowledge of both alleged dangerous conditions. We affirm.

While exiting the Perezes' front door early one morning, Hernandez fell while walking down a set of brick steps leading to the front porch. The porch area was dark and the porch light was inoperable. Hernandez sued the Perezes under a premises defect theory and alleged that "the failure to illuminate the homemade or makeshift, un-level, brick steps created an unreasonably dangerous condition." According to Hernandez, the Perezes breached their duty to exercise ordinary care "by failing to repair the porch light, replace the light bulb and/or warn Plaintiff of the unreasonably dangerous condition."

The Perezes moved for a traditional summary judgment asserting Hernandez could not recover under a premises defect theory because the only danger alleged in her petition was the broken porch light and her deposition testimony indicated she had actual knowledge of the inoperable porch light prior to exiting the Perezes' front door. In response, Hernandez asserted her petition clearly indicated the dangerous condition was a combination of the lack of light and the "homemade or makeshift, un-level, brick steps" and "each time reference is made to the broken or burned out light, the 'homemade or makeshift, un-level brick steps' leading from Defendants' home are mentioned." The trial court granted summary judgment and ordered that Hernandez take nothing in her suit against the Perezes.

We review the trial court's grant of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)). In reviewing the trial court's grant of a traditional motion for summary judgment, we must determine whether the movant carried its burden to establish that there existed no genuine issue of material fact and that the movant was entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001) (citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)). All evidence favorable to the non-movant must be taken as true, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Knott, 128 S.W.3d at 215.

A social guest is treated as a licensee. Knorpp v. Hale, 981 S.W.2d 469, 472 (Tex. App.--Texarkana 1998, no pet.) (citing Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex. App.--San Antonio 1988, writ denied)). To establish liability for a premises defect a licensee must plead and prove that a condition of the premises created an unreasonable risk of harm, the owner had actual knowledge of the condition, the licensee did not actually know of the condition, the owner failed to exercise ordinary care to protect the licensee from the danger, and the owner's failure to exercise ordinary care was a proximate cause of the licensee's injury. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (citing State v. Tennison, 509 S.W.2d 560, 561 (Tex. 1974)).

In her first issue, Hernandez argues her petition alleges two independent unreasonably dangerous conditions- the lack of a working porch light and the "homemade or makeshift, un-level brick steps leading away from the front porch." According to Hernandez, "These are each singularly an unreasonably dangerous condition that combine plurally [to] create the whole of the unreasonably dangerous condition . . .." Thus, argues Hernandez, the trial court erred in ruling on her actual knowledge of one alleged dangerous condition (the lack of lighting) without also ruling on her knowledge of the second alleged dangerous condition (the steps). The Perezes argue that although the petition references "'[h]omemade or makeshift, un-level, brick' steps" this description of the stairs does not create a "separate and distinct 'unreasonably dangerous condition.'" We agree.

Hernandez's petition expressly states that the failure to provide a porch light to illuminate the steps created the unreasonably dangerous condition, the Perezes breached their duty to exercise ordinary care by failing to replace the light bulb, repair the porch light, or warn her that the light was not working, and the Perezes' negligence was the proximate cause of her injuries. Hernandez acknowledges that the failure to illuminate the steps created an unreasonably dangerous condition. However, Hernandez argues that the lack of lighting is only the second claim she's asserted because the "first claim is the un-level steps that created an unreasonably dangerous condition in and of themselves."

To state a premises defect claim complaining of the steps, Hernandez must plead that the condition of the steps created an unreasonable risk of harm. See Payne, 838 S.W.2d at 237. The petition makes only two references to the steps. First, Hernandez alleges she "fell on homemade or makeshift, un-level, brick steps leading from Defendants' home." Hernandez's second reference to the steps states that "the failure to illuminate the homemade or makeshift, un-level brick steps created an unreasonably dangerous condition." These references to the steps are mere descriptions and do not indicate that any condition of the steps created an unreasonably dangerous condition. Contrary to Hernandez's assertions, the petition does not indicate how or why the steps were dangerous "in and of themselves." Furthermore, Hernandez did not plead that the Perezes' failure to exercise ordinary care to protect Hernandez of an alleged danger created by the steps was a proximate cause of her injury. See id. In fact, Hernandez expressly stated the Perezes' breached the duty of ordinary care by failing to repair the porch light or replace the light bulb.

Hernandez's deposition testimony also indicates that her sole premises defect complaint was the lack of lighting on the steps when she stated, "I fell because there was no light outside." When questioned regarding the lack of lighting on the porch area, Hernandez stated, "I think it was real dangerous because there was no light, and that's why I fell." Hernandez's deposition testimony further reveals she did not fall because of any defective condition of the steps, but because she was not familiar with the porch area and could not see the steps as she exited the front door. According to Hernandez, the porch area was unreasonably dangerous because "there's a step and there was no light and I don't know the place." Hernandez also stated, "[I]t was dark. I couldn't see. There was no light. I didn't know the . . . walkway. [I]t's not my house. . . ." Hernandez further indicated that when she placed her foot on the step, half of her foot missed the step and she stated, "That's what provoked my accident, and the light." Hernandez explained, "I just fell because I didn't know the walkway. I didn't calculate the level, the step." Hernandez's petition and deposition testimony reveal that she did not state a separate premises defect cause of action for defective steps. Hernandez's sole complaint is the lack of lighting on the porch area. Issue one is overruled.

In her second issue, Hernandez argues her testimony regarding her lack of familiarity with the Perezes' porch area raises a genuine issue of material fact as to whether she had actual knowledge of the lack of light and the condition of the steps. Hernandez's deposition testimony indicates she attempted to turn on the porch light before she exited the front door and the light did not turn on. Thus, the Perezes produced summary judgment evidence to show Hernandez had actual knowledge that the porch light was inoperable. Hernandez's testimony regarding her lack of familiarity with the porch area does not preclude summary judgment because Hernandez did not plead nor did she testify that she fell as a result of the defective condition of the steps. Hernandez's mere description of the steps as homemade, makeshift, and unlevel does not state a premises defect cause of action. Furthermore, Hernandez testified that she did not trip on the steps but fell because she was unfamiliar with the porch area and could not see the step. Because Hernandez did not plead nor testify to any defective condition of the steps, her lack of knowledge of the existence of the steps does not constitute sufficient summary judgment evidence to raise a genuine issue of material fact and preclude judgment as a matter of law. Issue two is overruled and the judgment is affirmed.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted January 24, 2006

Opinion Delivered June 29, 2006

Before McKeithen, C.J., Gaultney and Kreger, JJ.