Ramona Simien v. La Quinta Inn & Suites ( 2021 )

Affirmed and Opinion Filed July 30, 2021
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00441-CV
RAMONA SIMIEN, Appellant
V.
LA QUINTA INN & SUITES, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-12796
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Partida-Kipness
Appellant Ramona Simien appeals from the trial court’s summary judgment
for appellee La Quinta Inn & Suites. Simien sued La Quinta for injuries she allegedly
suffered from being subjected to cigarette smoke and pet urine odors while staying
at a La Quinta location in Dallas, Texas. La Quinta moved for no-evidence summary
judgment on Simien’s claims, and the trial court granted La Quinta’s motion. We
affirm the trial court’s judgment.
BACKGROUND
In June 2016, Simien traveled with her parents, sister, and brother-in-law from
her home in Fresno, Texas, to attend a wedding in Dallas, Texas. In preparation for
the trip, Simien’s brother-in-law booked two suites, one for Simien and one for the
remaining individuals, at a La Quinta hotel in Dallas. When Simien and her family
arrived on June 25, 2016, Simien confirmed with the front desk clerk that her
assigned room was non-smoking and not near any pets. Simien alleges that she also
“went through [her] medical history,” which includes kidney disease, diabetes, and
asthma, with the clerk. She was initially sent to the wrong room. She returned to the
front desk and was directed to the correct room, which the clerk assured was non-
smoking and clean.
Simien, her sister, and her brother-in-law went to the assigned suite. Simien
contends that upon entry, she noticed the room smelled like cigarette smoke and pet
urine, and there was pet hair on the furniture. Her sister and brother-in-law agreed.
The three of them returned to the front desk to complain about the odor and pet hair
and ask if Simien could be moved to another suite. The front desk clerk said there
were no other suites available. Simien told the clerk that she would be away at the
wedding for several hours and asked that the room be cleaned while she was away.
The clerk assured Simien that she would have the room cleaned. Simien returned to
the room to change clothes for the wedding, and she and her family left. She stopped
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by the front desk to inform the clerk that she was leaving. The clerk again confirmed
that she would have the room cleaned while Simien was out.
After the wedding, Simien returned to her room at approximately 12:45 a.m.
on June 26, 2016. She claims that the room still smelled of cigarette smoke and pet
urine, but she also smelled “something was sprayed in the room,” “like an air
freshener.” Thus, she concluded the hotel staff did not clean the room as promised
but merely sprayed air freshener. Simien did not complain that the room was still
unclean or request another room but went to bed because it was late, and she was
tired.
She contends that when she awoke the next day, she was “congested and could
barely breathe” and her face was “a little swollen.” She also contends that she started
running a fever during the night. Simien and her family ate breakfast and left the
hotel. She did not complain about the room again before leaving. Despite feeling ill,
Simien went to work the following day. While at work, Simien began feeling worse,
and a co-worker took her to the doctor. Simien complained of a fever, difficulty
breathing, and a headache. The doctor diagnosed her with an acute upper respiratory
infection and prescribed an antibiotic. Simien contends that she missed work the
entire week due to the illness. She further contends that her headaches continued
after completing the antibiotic.
A month after the wedding, on July 25, 2016, Simien went to the emergency
room complaining of a headache and that she could not “move [her] neck.” The
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emergency room doctors prescribed pain medication and recommended that she see
a neurologist. She saw her neurologist on July 27, 2016. According to Simien, her
neurologist “explained that [her] neck had locked due to a migraine. The acute upper
respiratory infection triggered the migraine.” Simien’s neurologist administered
injections into Simien’s neck to address her “locked” neck. Simien claims no further
illness or injury arising from her hotel stay.
Simien sued La Quinta on June 25, 2018, for negligence and premises
liability. Her negligence claim arises from La Quinta’s alleged failure “to properly
clean [her] room when notified of the hazards in the room.” Her premises liability
claim similarly arises from La Quinta’s failure to “exercise reasonable care to reduce
or eliminate the risk” posed by the “dangerous condition [that] existed on [La
Quinta’s] premises.” According to Simien’s original petition, the allegedly
dangerous condition is that “[t]he room was a smoking room and smelled of dog
urine.”
La Quinta filed its motion for no-evidence summary judgment on both claims.
On Simien’s negligence claim, La Quinta contended that Simien had produced no
evidence of any affirmative act by La Quinta that led to her injury. Rather, Simien
had alleged only that La Quinta failed to act, which cannot support a negligence
claim. Moreover, La Quinta’s act of cleaning the room was not contemporaneous
with Simien’s alleged injury, as required to prevail under a negligence theory. As to
Simien’s premises liability claim, La Quinta contended that Simien produced no
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evidence that the alleged condition created an unreasonable risk of harm.
Specifically, La Quinta contended that Simien produced no evidence that there was
actual cigarette smoke or dog urine in the room or that “the scent of smoke and dog
urine creates an unreasonable risk of harm.” La Quinta further contended that she
had produced no evidence that La Quinta did not use reasonable care to reduce or
eliminate any such risk.
Simien filed a response to La Quinta’s summary judgment motion and offered
her deposition transcript and medical records as evidence. Her response, however,
addressed only her premises liability claim. She did not address La Quinta’s motion
regarding her negligence claim. As to her premises liability claim, Simien argued
that there was evidence that she “requested the room be cleaned, and that the room
was not cleaned, or cleaned inadequately or improperly,” and that “the unsanitary
nature of the room” caused her alleged injury. She specifically alleged “[t]he
unreasonably dangerous condition of the premises was the room full of smoke, pet
hair and urine.” She further alleged that La Quinta “was placed on notice of the
defective nature of the room” when she “explained why a room free of smoke, pet
hair and urine was necessary because of her health issues,” and that she believed the
room was not cleaned but “only sprayed with air freshener.” The trial court
conducted a hearing and granted La Quinta’s motion. This appeal followed.
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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
there is no evidence to support an essential element of the nonmovant’s claim or
defense. 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).
When 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). We 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)). We 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., 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,
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424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),
cert. denied, 541 U.S. 1030 (2004).
“More than a scintilla of evidence exists when the evidence ‘rises to a level
that would enable reasonable, fair-minded persons to differ in their conclusions.’”
Chapman, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the
evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a
fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
ANALYSIS
In one issue, Simien contends that the trial court erred in granting summary
judgment on her premises liability claim because there is sufficient evidence she was
injured by an unreasonably dangerous condition on La Quinta’s property.1 La Quinta
contends, however, that Simien failed to raise a genuine issue of material fact on the
existence of an unreasonably dangerous condition and La Quinta’s reasonable efforts
to reduce or eliminate any such risk. La Quinta further contends that Simien waived
her challenge to La Quinta’s use of reasonable efforts by failing to brief the issue.
1
Simien sued La Quinta on premises liability and negligence theories. La Quinta moved for no-
evidence summary judgment on both theories. Simien did not file a response as to her negligence claim and
does not contest the trial court’s judgment with respect to this claim. See TEX. R. CIV. P. 166a(i) (“The
court must grant the motion unless the respondent produces summary judgment evidence raising a genuine
issue of material fact.”). Accordingly, Simien has waived error as to judgment on her negligence claim.
TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.”); D.R. Horton-Tex., Ltd. v. Markel
Intern. Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009).
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The parties agree that Simien was an invitee at the time and place of the
alleged injury. See Callahan v. Vitesse Aviation Servs., LLC, 397 S.W.3d 342, 351
(Tex. App.—Dallas 2013, no pet.) (invitee is one who enters on another’s premises
with the owner’s knowledge and for the mutual benefit of both). For an invitee to
prevail on a premises liability claim, the claimant must prove (1) the owner or
operator of the premises had “actual or constructive knowledge of some condition
on the premises”; (2) “the condition posed an unreasonable risk of harm”; (3) “the
owner/operator did not exercise reasonable care to reduce or eliminate the risk”; and
(4) “the owner/operator’s failure to use such care proximately caused the plaintiff’s
injuries.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A condition
presenting an unreasonable risk of harm is one in which there is a “sufficient
probability of a harmful event occurring that a reasonably prudent person would
have foreseen it or some similar event as likely to happen.” County of Cameron v.
Brown, 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther
Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). Only the second and third elements of
Simien’s claim are at issue.
I. Unreasonably Dangerous Condition
La Quinta argued in its motion for no-evidence summary judgment that
Simien had produced no evidence of a condition on its property that created an
unreasonable risk of harm. In her response to La Quinta’s motion, Simien described
the unreasonably dangerous condition as a “room full of smoke, pet hair and urine.”
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This is not, however, what she alleged in her original petition. In fact, Simien’s
petition does not specifically identify the allegedly dangerous condition but alludes
to the “defect” as a room “that had been smoked in and was dirty.” Her factual
recitation states, “The room was a smoking room and smelled of dog urine . . . .”
Thus, Simien alleged the odor of cigarette smoke and dog urine was the
unreasonably dangerous condition. In response to La Quinta’s motion, Simien had
to produce more than a scintilla of evidence to raise a fact issue as to whether this
allegation was true. See Smith, 288 S.W.3d at 424.
In response to La Quinta’s motion, Simien offered medical records and a
transcript of her deposition. Simien’s medical records indicate that she was
diagnosed with an “acute upper respiratory infection” on June 27, 2016, one day
after her stay at the La Quinta. According to Simien, this infection was caused by
the odor of cigarette smoke and dog urine in her hotel room, which posed an
unreasonably dangerous risk because of her underlying medical conditions. She
contends that La Quinta was made aware of this risk through her discussion with La
Quinta’s front desk clerk. Simien testified in her deposition that she asked the front
desk clerk to make sure she was assigned a non-smoking room and “was not by any
pet or had any pet hair in the room.” She contends that the clerk told her that the
room was non-smoking and had been cleaned. She claimed that she also “went
through [her] medical history” and told the clerk that she had kidney disease and
asthma and was diabetic. According to Simien, this was sufficient to put La Quinta
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on notice that the odor of cigarette smoke and dog urine presented an unreasonably
dangerous risk to her. We disagree.
Simien cites no evidence indicating how the allegedly offensive odors posed
an unreasonably dangerous risk. Although she alleges that she told the clerk about
her various medical issues, she does not explain or offer evidence to show that these
medical conditions created an unreasonable risk of her developing an acute upper
respiratory infection from exposure to the odors. Indeed, the only evidence in the
record that connects the odors to her infection is Simien’s deposition testimony in
which she testified that her doctor “assumed” the infection was a reaction to the
odors. However, she does not direct us to where among her medical records we can
find this “assumption,” and our review of the record has not produced any such
medical record. Simien’s self-serving statement is so weak as to merely create
suspicion of a fact and is less than a scintilla of evidence, see Chapman, 118 S.W.3d
at 751, and she offers no other evidence to show how La Quinta should have been
aware of any unreasonable risk posed by the odors solely from her conversation with
the front desk clerk, see Keetch, 845 S.W.2d at 264 (the owner or operator of the
premises must have actual or constructive knowledge of the condition).
II. Exercise of Reasonable Care
Simien’s petition alleged that La Quinta “failed to remedy the defect when
warned by [her]” and “failed to properly clean [her] room when notified of the
hazards in the room,” presumably referring to the “defect” previously discussed. Her
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factual recitation states, “Plaintiff requested a clean-up or another room, and the
Defendant failed to adequately remedy the condition.” Thus, she alleged that La
Quinta failed to take “reasonable care to reduce or eliminate the risk” because “the
room was not cleaned, or cleaned inadequately or improperly.” La Quinta moved for
summary judgment on the ground that Simien produced no evidence to raise a
genuine issue of material fact as to this allegation.
La Quinta contends on appeal that Simien has waived her right to challenge
summary judgment on this ground by not raising the issue in her brief. Failure to
brief one of the grounds for summary judgment waives error as to the granting of
that ground for summary judgment. In re Estate of Bendtsen, 230 S.W.3d 823, 826
(Tex. App.—Dallas 2007, pet. denied); see also St. John Missionary Baptist Church
v. Flakes, 595 S.W.3d 211, 215 (Tex. 2020) (“[C]ourts of appeals retain their
authority to deem an unbriefed point waived in lieu of requesting additional
briefing.”). However, we “liberally construe issues presented to obtain a just, fair,
and equitable adjudication of the rights of the litigants.” El Paso Nat. Gas Co. v.
Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999). Accordingly, we address
Simien’s issue regarding La Quinta’s exercise of reasonable care.
“Premises owners and occupiers owe a duty to keep their premises safe for
invitees against known conditions that pose unreasonable risks of harm.” TXI
Operations, L.P. v. Perry, 278 S.W.3d 763, 764–65 (Tex. 2009) (citing CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)). “The duty is to ‘take
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whatever action is reasonably prudent under the circumstances to reduce or to
eliminate the unreasonable risk from that condition.’” Id. (quoting Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)).
Simien alleges that the room still smelled of cigarette smoke and dog urine
when she returned from the wedding in the early hours of June 26, 2016, despite the
front desk clerk’s promise the room would be cleaned. However, when asked in her
deposition “[w]hat was the first thing [she] noticed when [she] got back to [her]
room,” Simien said, “That I smelled a spray of some sort.” When pressed further,
Simien stated, “I can smell something was sprayed in the room. . . . Like an air
freshener, it was a different smell. It was something that I felt was sprayed in the
room.” When asked whether she assumed that housekeeping had been in the room
because of the “different smell,” Simien said she “assumed that somebody came to
the room and sprayed something, because [she] still smelled the cigarette and the
urine.” Her own admission is evidence that La Quinta attempted to address the
allegedly offensive odors.
The question remains, whether La Quinta took “reasonably prudent” actions
under the circumstances to reduce or eliminate the risk at issue. See id. Simien
offered no evidence beyond her alleged discussion of her medical issues with the
front desk clerk to show La Quinta’s actions were not “reasonably prudent.” As we
previously noted, this discussion was insufficient to raise a fact question as to La
Quinta’s knowledge of an unreasonably dangerous condition. It is likewise
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insufficient to raise a fact question as to whether La Quinta took reasonably prudent
actions to reduce or eliminate the condition. Moreover, Simien offered no other
evidence of what actions La Quinta took or should have taken. And her testimony
implying that she “felt” like La Quinta merely sprayed an air freshener instead of
cleaning the room creates no more than mere surmise or suspicion of the fact. See
Chapman, 118 S.W.3d at 751.
Additionally, the record reflects that Simien was aware of the alleged risk
posed by the odors when she stayed in the room, thus making the condition open and
obvious and alleviating La Quinta of its duty to make safe or warn. A landowner
typically has a duty to either make safe or warn of concealed, unreasonably
dangerous conditions on its premises because landowners are typically in a better
position than invitees to discover such conditions. Austin v. Kroger Tex., L.P., 465
S.W.3d 193, 203 (Tex. 2015). However, when an invitee is aware of a dangerous
premises condition, either because the danger is obvious or the landowner provided
an adequate warning, “the condition will, in most cases, no longer pose an
unreasonable risk because the law presumes that invitees will take reasonable
measures to protect themselves against known risks, which may include a decision
not to accept the invitation to enter onto the landowner’s premises.” Id. Thus, we
“typically characterize[] the landowner’s duty as a duty to make safe or warn of
unreasonably dangerous conditions that are not open and obvious or otherwise
known to the invitee.” Id. Although there are exceptions to this general rule, Simien
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did not plead any such exceptions. Simien contends that the odors created an
unreasonably dangerous condition. The record reflects that Simien had encountered
the allegedly offensive odors three times before staying the night in the room: at
check-in, when changing clothes, and when retuning from the wedding. The alleged
unreasonably dangerous condition was, thus, open and obvious to Simien, and La
Quinta had no duty to make safe or warn of the condition. Id.On the record before us, we conclude that Simien failed to present more than
a scintilla of probative evidence to raise a genuine issue of material fact and
overcome La Quinta’s motion for no-evidence summary judgment. Smith, 288
S.W.3d at 424. Accordingly, we overrule Simien’s sole issue on appeal.
CONCLUSION
In response to La Quinta’s motion for no-evidence summary judgment,
Simien was required to produce more than a scintilla of probative evidence to raise
a fact question as to whether the odor of cigarette smoke and dog urine posed an
unreasonably dangerous risk and whether La Quinta took reasonably prudent actions
to remedy or reduce that risk.
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Having concluded that Simien failed to produce sufficient evidence to meet
this standard, we overrule her sole issue on appeal and affirm the trial court’s
judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200441F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RAMONA SIMIEN, Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-20-00441-CV V. Trial Court Cause No. DC-18-12796.
Opinion delivered by Justice Partida-
LA QUINTA INN & SUITES, Kipness. Justices Myers and Garcia
Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee LA QUINTA INN & SUITES recover its
costs of this appeal from appellant RAMONA SIMIEN.
Judgment entered July 30, 2021.
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