Ryan Esquivel v. JPM Realty Property Management, Inc. and JPM Realty Investments, Inc. ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-238-CV
RYAN ESQUIVEL APPELLANT
V.
JPM REALTY PROPERTY APPELLEES
MANAGEMENT, INC. AND
JPM REALTY INVESTMENTS, INC.
------------
FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
In two issues, Appellant Ryan Esquivel appeals the trial court’s grant of
summary judgment for Appellees JPM Realty Property Management, Inc. and JPM
Realty Investments, Inc. (collectively “JPM”). W e affirm.
1
 See Tex. R. App. P. 47.4.
II. Procedural Background
Esquivel sued JPM, Avery Pointe apartment complex’s management firm, for
premises liability after he was injured in Avery Pointe’s pool area—to wit, while a
guest in the pool area, the “seat slab” of a concrete bench fell on his hand. Among
other grounds, JPM moved for summary judgment on the ground that there was no
evidence that it knew of the allegedly dangerous condition. Esquivel attached the
following to support his response: his deposition; the affidavit of Jack Shatley, one
of the owners of Tex-Art Stone, Inc., which manufactured and installed the concrete
bench; the deposition of Ljudmilla Corral, an Avery Pointe tenant; photographs of the
pool area and the bench; and the affidavit of Edward Esquivel, his father. 2 The trial
court granted summary judgment for JPM.
III. Summary Judgment
In two issues, Esquivel complains that he produced more than a scintilla of
probative evidence in response to JPM’s summary judgment grounds and that his
comparative negligence is a fact question for the jury that precludes summary
judgment.
A. Standard of Review
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
2
 JPM also attached Esquivel’s and Corral’s depositions and the Shatley
affidavit to its motion.
2
there is no evidence to support an essential element of the nonmovant’s claim. Tex.
R. Civ. P. 166a(i). The motion must specifically state the elements for which there
is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310 (Tex. 2009).
The trial court must grant the motion unless the nonmovant produces summary
judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P.
166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).
W hen reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. Wilson, 168
S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006)). If the nonmovant
brings forward more than a scintilla of probative evidence that raises a genuine issue
of material fact, then a no-evidence summary judgment is not proper. Smith v.
O’Donnell, 288 S.W .3d 417, 424 (Tex. 2009).
3
The trial court did not specify any grounds in its final judgment. 3 W hen 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
theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 216 (Tex.
2003); Star-Telegram, Inc. v. Doe, 915 S.W .2d 471, 473 (Tex. 1995).
B. Premises Liability
To succeed on a premises liability claim, an invitee must prove that (1) a
condition of the premises created an unreasonable risk of harm to the invitee; (2)
the owner knew or reasonably should have known of the condition; (3) the owner
failed to exercise ordinary care to protect the invitee from danger; and (4) the
owner’s failure was a proximate cause of injury to the invitee. Fort Brown Villas III
Condo. Ass’n, Inc. v. Gillenwater, 285 S.W .3d 879, 883 (Tex. 2009). If the owner or
occupier did not create the condition, it must have existed long enough for the owner
or occupier to have a reasonable opportunity to discover it—the “temporal element”
of premises liability. See Wal-Mart Stores, Inc. v. Reece, 81 S.W .3d 812, 814 (Tex.
2002); see also Hunnicutt v. Dallas/Fort Worth Int’l Airport Bd., No. 02-08-00297-CV,
3
 The trial court issued a letter ruling prior to issuing its judgment, stating,
I have completed my review of plaintiff’s evidence in response to
defendants’ “no-evidence” motion for summary judgment and find that
there is (1) no evidence of a dangerous condition and (2) no evidence
that the owner-occupier of the premises had actual or constructive
knowledge of a dangerous condition; therefore, defendants’ motion for
summary judgment is granted.
4
2009 W L 2356858, at *2 (Tex. App.—Fort W orth July 30, 2009, pet. denied) (mem.
op.) (“‘[T]here must be some proof of how long the hazard was there before liability
can be imposed on the premises owner for failing to discover and rectify, or warn of,
the dangerous condition.’”).
C. Summary Judgment Evidence
No one disputes that Esquivel was an invitee or that his injury involved a large
concrete bench comprised of a curved seat supported by two pedestals.
Photographs reveal that this bench and two others of the same design were grouped
around a table in the Avery Pointe swimming pool area.
1. Esquivel’s Deposition
Esquivel testified that on July 31, 2005, he and two other teenagers, one of
whom was an Avery Pointe tenant, spent around two hours in the pool area where
the bench was located. An eight- or nine-year-old boy and his mother were there at
the same time—the boy had a “water noodle” that he used to hit Esquivel. Esquivel
stated that he and the others did not run in the pool area; he also testified, “I did not
run at—directly at the bench.” W hen he decided to get out of the pool, “the boy
followed me, you know, hitting me repeatedly [with the water noodle] and I
approached the bench and I told the boy, okay, that’s enough. And I attempt[ed] to
sit down on the bench, but next thing I know that happened, it just collapsed and
past that I don’t really remember much.” As soon as he made contact with the
bench, it collapsed onto his right hand.
5
Esquivel claimed that his father inspected the other benches on the day of the
accident and told him “that they [the seats] did not come off like this one did” and
“that there was some kind of adhesive on the bottom of the bench to keep it in
place.” Esquivel stated that all of the benches looked the same that day, that he had
no way of knowing that this particular bench was going to collapse, and that he did
not know if the apartment complex knew about “the allegedly dangerous condition.”
Two photos were included with Esquivel’s deposition—when asked who took
them, he stated, “I imagine my father.” He did not know when the photos were
taken. One photo shows the top of the bench on the ground, leaning against the two
pedestals. The other shows the bench put back together and indistinguishable from
the other two benches nearby.
2. Shatley’s Affidavit
Shatley stated in his affidavit that he was one of the owners of Tex-Art Stone,
Inc., which manufactures and installs concrete benches. Prior to July 2005, Tex-Art
Stone manufactured and installed several concrete table and bench sets in the
Avery Pointe swimming pool area. He asserted,
These benches were properly set up at the time of delivery. I am not
aware of any defect in the concrete benches manufactured by Tex-Art
Stone, Inc. that were sold to Avery Pointe. . . . In addition, on 8-13-08,
I personally inspected the concrete benches in the swimming pool area
at Avery Pointe and found them to be set up properly at that time.
I have reviewed a copy of [Esquivel’s petition and his deposition].
There has never [sic] an incident reported to Tex-Art Stone, Inc. in
which a concrete bench seat has collapsed as described by Ryan
6
Esquivel in [his petition and deposition]. In addition, I have been
actively employed in this industry for more than 30 years. Assuming
that the bench in question was positioned adequately, it is my opinion
that the bench seat could not have collapsed as described by Ryan
Esquivel in his [deposition and petition].
3. Corral’s Deposition
Corral testified that she had lived at Avery Pointe since 2003. On July 31,
2005, she and her son were in the pool area when two boys 4 a couple of years older
than her son were there. Prior to the accident, her son played with them. Corral
described the playing as running and kicking each other outside of the pool,
splashing in the pool, and picking up her son and throwing him in the
water—roughhousing, essentially—“up to the point when [she] asked them to quit
playing with her son” because she did not want him to get hurt. The boys respected
her request, and she left the pool area to join some friends outside the pool area.
She could see the boys continue to run around the pool area from her vantage point
outside the pool area—they would get out of the pool and then run to jump back into
the pool. The accident occurred between thirty minutes to an hour later.
Corral testified that she was looking at the pool from outside the pool area and
saw the boys running—the reason she was looking at the pool was because “[she]
was continuously telling them, quit running.” Esquivel slipped and then she heard
4
 After Corral reviewed a statement from her earlier interview about the
incident, she saw that she had said that there were three teenaged boys. She said
it was possible that there were three boys instead of two—three years had passed
since the accident.
7
a loud noise “[l]ike somebody fell.” She did not see the accident occur, but her son
explained to her what had happened because he had remained in the pool area
when she left. Corral testified that her son “told [her] that boys were running and the
boy, [Esquivel], he slipped. And when he slipped his feet pushed the—the
standing—the side of the bench, he pushed in, and the top fell on his hand when he
was falling down.” W hen she arrived in the pool area, she saw Esquivel, who was
screaming, sitting on the ground and holding his hand. His feet were toward the
bench, and the top of the bench was on the ground.
Corral subsequently gave a statement in around 2006 to someone at the
apartment manager’s office. Esquivel’s counsel produced three pages of notes from
that interview. 5 After she reviewed the interview notes, she stated that everything
but the following appeared to be correct:
I cannot recall 100% what did I told [sic] to that gentleman. But I don’t
believe I said the bench is unstable, because the bench is very heavy.
And that’s—it takes really big force to knock it over. So I don’t believe
I ever mentioned unstable bench. Or something like calling it
hazardous. 6
5
 The statement was included as a deposition exhibit.
6
 The notes reflect that she stated
that the bench is a large heavy concrete bench and she believes the
bench to be unstable. Ms. Corral[] stated that the seat of the bench is
not attached to the concrete legs of the bench and that upon coming
into the pool area, she observed the seat of the bench lying on its side.
....
8
She admitted that it was possible that she had told the interviewer that the bench
was unstable and hazardous. But she also indicated that it was possible that she
might have come up with the idea that the bench was unstable because of the
severity of Esquivel’s injury.
Corral described the pool area as gated, with holly bushes around the inside
of the fence that did not obstruct the view from the outside. She stated that at some
point between 2003 and 2005, Avery Pointe acquired the concrete outdoor
furniture—it put up the fence and added locks to the pool gate at the same time.
She was not present when the benches were delivered or installed. Corral stated
that prior to July 2005, she had sat on the concrete benches, found them very sturdy,
and had never experienced the top of the bench slipping. She had never seen the
bench topple over from someone sitting on it, and she testified that she “had no clue
there was tape” installed on the bottom of the concrete bench.
4. Edward Esquivel’s Affidavit and Photos
Esquivel’s father stated in his affidavit that Esquivel’s injury occurred “as the
result of the seat ‘slab portion’ of a concrete bench falling and entrapping his right
hand.” He stated,
Ms. Corral[] stated that she believes the bench could be a hazard, since
the seat is not attached to the legs. However, she does not believe this
incident would have occurred, had the boys not been running around
the pool area. Ms. Corral[] stated that it would take a lot of force to
knock off the seat of the bench and had the claimant not been running
and falling, then the seat would not have come off.
9
On August 1, 2008 I went to the swimming pool area of the premises
known as Avery Pointe at Cityview for the purpose of taking
photographs of the concrete bench which caused the injury to my son[.]
. . . The pictures marked Exhibits “D” and “E” are the pictures that I
took on that day.
Exhibit “D” shows part of the top portion of the bench slightly removed from one of
its pedestals. Exhibit “E” shows the top portion of the bench completely removed
from its pedestals and leaning against them.
D. Analysis
The supreme court affirmed a no-evidence summary judgment on the actual
or constructive knowledge ground in a recent, remarkably similar premises liability
case. Gillenwater, 285 S.W .3d at 880, 883–84. W hile lowering himself into a pool-
side chair near a condominium swimming pool, Gillenwater lost the tip of his right
finger to a broken weld on the chair’s frame. Id. at 880. He offered photographs of
the chair taken by an insurance adjuster after the injury and the deposition of Frank
Collins, the condominium manager, as evidence to support an inference that the
chair was already broken and that the broken welds were easily visible to the naked
eye prior to the accident. Id. at 883. Collins’s testimony included that it was the
condominium’s responsibility to maintain the outdoor equipment in a safe condition,
that he first became aware of the injury the day after the incident, that he had an
associate’s degree in welding, that he knew the combination of chlorine and salt
water in the air had a corrosive effect on metal chairs by the pool, and that he had
an employee inspect, wash, and clean all outdoor lounge chairs by the pool
10
(including the chair at issue) six days a week. Id. Gillenwater and Collins inspected
the chair the day after the injury, and the broken weld was visible to both men and
was on the same side of the chair where Gillenwater had placed his hand; Collins
inspected the other chairs by the pool, found “hairline cracks” in those chairs, and
repaired or replaced them. Id.
The supreme court held that the evidence only established “that Collins first
became aware of the injury and the chair’s condition the day after the injury
occurred. . . . The fact that Gillenwater’s fingertip was severed and that the chair
broke is evidence that a dangerous condition existed, but it offers no evidence as to
how long it existed.” Id. at 883–84 (emphasis added).
Esquivel argues that he produced more than a scintilla of probative evidence
that JPM had actual or constructive knowledge of the dangerous condition of the
concrete bench. He states:
As discussed above, the summary judgment evidence (produced by
both parties): Esquivel’s deposition testimony, the affidavit of Edward
Esquivel and the photographs showing the presence of the adhesive
tape between the top of the column of the bench and the underside of
the concrete seat slab. Additionally, Corral’s deposition testimony
confirms that the top of the bench was heavy and that, following
Esquivel’s injury, she saw the pillar knocked over and the top portion of
the bench on the ground. The sheer weight of the concrete bench
(between 200–300 lbs) and [the] existence of the adhesive tape support
that JPM either caused the harmful condition of the bench by using the
adhesive tape to try to secure the concrete bench, that JPM knew of the
harmful condition of the concrete bench and negligently failed to
remove it[,] or prove[s] the harmful condition was present for so long
that it should have been discovered or removed in the exercise of
reasonable care.
11
W e disagree. Like in Gillenwater, nothing in the record here shows that JPM
created, knew about, or could have discovered the dangerous condition before the
incident occurred on July 31, 2005. JPM bought the bench from Tex-Art at some
point after Corral moved to Avery Pointe in 2003 and before July 2005, and Tex-Art
installed it with at least two other benches that are represented in the photographs. 7
Shatley, the bench’s manufacturer, testified that he was not aware of any defects in
the benches that Tex-Art sold to Avery Pointe and that the benches were properly
set up when delivered. He personally inspected them three years later, on August
13, 2008, and found them to be properly set up. His affidavit did not address
whether an adhesive is used in the benches’ manufacture or assembly. Corral
testified that prior to the July 31, 2005 incident, she sat on the benches, found them
to be sturdy, had never seen anyone else sit on the bench and have it topple over,
and “had no clue there was tape” on the bottom of the concrete bench.
Esquivel testified that all of the benches looked the same and that he had no
way of knowing that this particular bench was going to collapse. Although he
referred to “[a] type of adhesive used on the pedestal to secure the bench” as an
7
 Contrary to Esquivel’s assertion that adhesive tape can be seen in Exhibits
“D” and “E,” the poor reproduction quality of the photographs in the record does not
reveal this feature. Nonetheless, assuming that there is adhesive tape on the bench,
or that there is some sort of adhesive as referenced in Esquivel’s deposition, it does
not follow from its mere presence either that JPM knew about it prior to July 31,
2005, or that JPM—as opposed to Tex-Art or an Avery Pointe tenant—placed it
there. Less than a scintilla of evidence exists when the evidence is so weak that it
does nothing more than create a mere surmise or suspicion of a fact. Kindred v.
Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983).
12
actual defect in the bench and said that his father told him “that there was some kind
of adhesive on the bottom of the bench to keep it in place,” he did not know if the
other benches also used adhesive. Further, he testified that he did not know
whether the bench had ever fallen before, whether anyone else had ever been
injured because of the bench, or whether the apartment complex knew about “the
allegedly dangerous condition” before his injury.
The interview notes, which reflect that Corral told the interviewer that she
thought the bench was unstable; that its seat was not attached to its legs; that when
she went into the pool area, she saw the seat lying on its side; and that it could be
a hazard since the seat was not attached to the legs, are from an interview given by
Corral after the July 31, 2005 incident. Nothing in the interviewer’s notes references
any sort of adhesive or adhesive tape on the bench at that time. Edward’s affidavit
reflects that he went to the apartment complex on August 1, 2008, three years after
the incident, and took photographs—he does not mention anything about an
adhesive or adhesive tape in his affidavit.
On the record here, there is no evidence that JPM knew or could have
discovered before the July 31, 2005 incident that the bench was defective or that
JPM, as opposed to the manufacturer and installer, Tex-Art, or an Avery Pointe
tenant, knew about the alleged adhesive or adhesive tape or placed it there to keep
the bench seat attached to its legs. See Gillenwater, 285 S.W .3d at 883–84; see
also Parks v. State & Ale of Tex., Inc., No. 01-04-00080-CV, 2006 WL 66428, at *3
13
(Tex. App.—Houston [1st Dist.] Jan. 12, 2006, pet. denied) (mem. op.) (stating, in
suit to recover for injuries sustained by restaurant patron when his chair broke, that
patron failed to direct the court to anything that would create a material fact issue
regarding whether the manager or anyone else at Steak & Ale knew or should have
known that the chair created an unreasonable risk of harm). Therefore, we overrule
Esquivel’s first issue. And because we conclude that the trial court did not err by
granting JPM’s no-evidence motion for summary judgment, we do not reach
Esquivel’s second issue on comparative negligence as a fact issue precluding
summary judgment. See Tex. R. App. P. 47.1.
IV. Conclusion
Having overruled Esquivel’s dispositive issue, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: July 1, 2010
14