
    Gregory SANCHEZ, Appellant v. STRIPES LLC and Stripes Convenience Store, an Assumed or Common Name, Appellees
    No. 04-16-00129-CV
    Court of Appeals of Texas, San Antonio.
    Delivered and Filed: April 26, 2017
    
      Rajinder Aujla, Porter Rodgers Dahl-man & Gordon P.C, San Antonio, TX, for Appellant.
    Fredrick F. Rogers Jr., Corpus Christi, TX, Anthony Garza-Vale, Tyler & Peery, San Antonio, TX, for Appellee.
    Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice
   OPINION

Opinion by:

Patricia 0. Alvarez, Justice

As Appellant Gregory Sanchez walked towards the men’s restroom in one of Ap-pellees’ convenience stores, he walked around a wet floor warning sign located in the hallway outside the 'bathroom area. Sanchez insists the hallway floor was dry when he walked into the restroom, but when he walked out, the hallway floor was wet; he slipped, fell, and was injured. He sued Appellees for personal injury based on premises liability, but the trial court granted summary judgment for Appellees. Because we conclude the warning was adequate as a matter of law, we affirm the trial court’s judgment.

Background

Sanchez was injured in Del Rio, ■ Texas, in a convenience store owned or operated by Stripes LLC and Stripes Convenience Store, an assumed or common name (collectively Stripes). It is undisputed that Sanchez was an invitee to the store. ■

The store’s restrooms are located at the rear of the store. The restrooms aré accessible via an open entry that leads to a sm^ll hallway. The store’s surveillance video recording of the incident shows a yellow, “WET FLOOR” warning sign positioned in the entry to the small hallway outside the restrooms. As Sanchez turned a corner and walked into the short, relatively narrow hallway, he walked past the warning sign. Once in the hallway, he walked past a female Stripes employee wet-mopping the floor, and then entered the men’s restroom.

While Sanchez was inside the restroom, the Stripes employee proceeded to wet-mop the hallway entrance where the sign was located. As she mopped, she moved the sign a few feet, mopped the area where the warning sign had been, and then put the sign back in the same place as it was when Sanchez entered the restroom.

Less than two minutes after he entered it, Sanchez exited the restroom. As he did, he slipped on the wet hallway floor within a few feet of where the sign was located. Sanchez was injured, and he sued Stripes for his personal injury based on premises liability.

Sanchez argues Stripes breached its duty of ordinary care to him because it did not adequately warn him of the dangerous condition or make the condition reasonably safe.

In its traditional motion for summary judgment, Stripes argued that the summary judgment evidence conclusively negates an essential element of Sanchez’s claim—that Stripes breached its duty to him—and it was entitled to judgment because, as a matter of law, Stripes’s warning was adequate and the condition was open and obvious. In its no-evidence motion, Stripes argued there was no evidence that the condition posed an unreasonable risk of harm, that Stripes did not exercise reasonable care to reduce or to eliminate the risk, or that Stripes’s alleged failure to exercise ordinary care proximately caused Sanchez’s injuries.

The trial court granted Stripes’s combined motion but did not state the ground on which it granted the motion. Sanchez appeals.

Standards of Review

A. No-Evidence Motion

We review a no-evidence summary judgment using a legal sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); see also Tex R. Civ. P. 166a(i). “When reviewing [either a no-evidence or a traditional motion for] summary judgment, we take as true all evidence favorable to the nonmov-ant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004); accord Strandberg v. Spectrum Office Bldg., 293 S.W.3d 736, 738 (Tex. App.-San Antonio 2009, no pet.). If the nonmov-ant’s summary judgment evidence contains “more than a scintilla of probative evidence to raise a genuine issue of material fact,” the trial court may not properly grant the no-evidence motion. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

B. Traditional Motion

‘We review a trial court’s grant of summary judgment de novo.” Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); accord Joe, 145 S.W.3d at 157. “A traditional summary judgment motion is properly granted where a defendant conclusively negates at least one essential element of a [plaintiffs] cause of action.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (per curiam); accord Fernandez, 315 S.W.3d at 508; see Tex. R. Civ. P. 166a(c).

Applicable Law

To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements: (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.

Henkel, 441 S.W.3d at 251-52 (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)). The property owner may negate the third element by adequately warning the invitee of the dangerous condition. Id. at 252; Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (noting that a property owner “can satisfy its duty [of reasonable .care] by providing an adequate warning, even if the unreasonably dangerous condition remains”).

When considering whether a warning is adequate, it must be considered “in context of the totality of the circumstances.” Henkel, 441 S.W.3d at 252; see Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). “[A] property owner’s warning to an invitee of an unreasonably dangerous condition is adequate if, given the totality of the surrounding circumstances, the warning identifies and communicates the existence of the condition in a manner that a reasonable person would perceive and understand.” Henkel, 441 S.W.3d at 253; see TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009). “If the evidence conclusively establishes that the property owner adequately warned the injured party of the condition, then the property owner was not negligent as a matter of law.” Henkel, 441 S.W.3d at 252; accord Austin, 465 S.W.3d at 204 (“[A] landowner who provides an adequate warning acts reasonably as a matter of law.”).

Analysis

Generally, when a party moves for summary judgment on no-evidence and traditional bases, we analyze the no-evidence motion first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). But here, because wé “must affirm summary judgment if any of the summary judgment grounds are meritorious,” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000), and one of the grounds in Stripes’s traditional motion is dispositive, we will forego the no-evidence motion analysis.

A. Undisputed Pacts

A number of facts are undisputed:' Stripes owned the premises, Sanchez was an invitee, a female Stripes employee wet-mopped the floor where Sanchez fell, and Sanchez was injured when he slipped and fell on the wet floor. It is also undisputed that Stripes placed a yellow warning sign in the entry to the bathroom area hallway—an area where the employee was mopping. The yellow, free-standing warning sign was approximately three feet tall; it contained one graphical and four textual warnings. Near the top of the sign was a graphic of a stick figure human slipping with the words “CAUTION” and “CUIDA-DO” immediately under the graphic. Below the graphic and cautions were the words “WET FLOOR,” and lower still, the words “PISO MOJADO.”

The principal disputed questions are whether—as a matter of law—the warning was adequate, and the danger was open and obvious. Taking all the summary judgment evidence favoring Sanchez as true and making all reasonable inferences in his favor, Joe, 145 S.W.3d at 157, we address the question of an adequate warning first, and we start with the totality of the'circumstances.

B. Totality of the Circumstances

To determine whether a warning is adequate, we view the warning “in context of the totality of the circumstances.” See Henkel, 441 S.W.3d at 252. The totality of the circumstances in.this case is circumscribed by both distance and time. The surveillance video shows that the short hallway outside the restroom is relatively narrow. When asked if he “walk[ed] around that sign when you went into the rest room,” Sanchez answered “Correct.” Sanchez also admitted that he saw the wet floor warning sign before he entered the restroom and, as he walked across the hallway towards the restroom, he saw the Stripes employee mopping the hallway floor. The surveillance video also shows that less than two minutes elapsed from when Sanchez entered the hallway, saw the Stripes employee mopping the floor, exited the restroom, and fell, within arm’s reach of the wet floor sign.

C. Adequacy of Warning

Sanchez insists he was not adequately. warned because “when I went in [to the men’s restroom, the floor where he slipped] wasn’t wet and when I stepped out I wasn’t aware that it was wet because there was no sign right in front of the door.”

But Stripes had no duty to ensure Sanchez’s safety;- Stripes’s duty was to “take safety measures that an ordinary, reasonable landowner would take.” See Austin, 465 S.W.3d at 203-04.

Accepting Sanchez’s deposition testimony as true that the floor where he slipped was dry as he first walked across it, we nevertheless necessarily conclude that that fact is of no legal consequence in this case, because the summary judgement evidence conclusively establishes that Sanchez was adequately warned of a dangerous condition in the small hallway—a wet floor—as he entered the hallway area and before he fell.

The video shows that, as Sanchez entered the hallway, the wet floor sign warned of a wet floor in the immediate area. See Golden Corral Corp. v. Trigg, 443 S.W.3d 515, 517 (Tex. App.-Beaumont 2014, no pet.). It shows that Sanchez walked around a highly-visible,. clearly-marked sign, and he exited the restroom less than two minutes after he walked around the sign and entered the restroom.

Sanchez testified that he saw the Stripes employee actively mopping in the area, and he asked her about the areas she had mopped. Cf. Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.-Texarkana 2010, no pet.) (deciding-that evidence that thé plaintiff saw’the wet floor sign, saw the floor being wet-mopped, and received a verbal warning of a wet floor comprised an adequate warning as a matter of law). Sanchez testified that he saw the Stripes employee mopping the floor before he entered the restroom, he identified the area where she was mopping, and it was undisputed that she was making previously dry areas of the hallway floor wet.

Taking all the summary judgment evidence favoring Sanchez as true,'and making all reasonable inferences in his favor,we nevertheless conclude' that the summary judgment evidence conclusively establishes that Sanchez was adequately warned that he was- entering an area with an ongoing activity that was treating a dangerous condition—a wet floor.

Under these facts, Stripes’s warnings were adequate as. a matter of law. See Austin, 465 S.W.3d at 204; Brooks, 303 S.W.3d at 925; Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.-Houston [14th Dist,] 2002, pet. denied).

D. Addressing the Dissent

The dissent focuses on the changed condition of the floor—that the hallway floor immediately in front of the men’s restroom door was dry when Sanchez entered but was wet when he exited the restroom. It asserts, that “the condition addressed by the wet-floor sign did not exist at the time the warning was given.” But the disposi-tive facts are undisputed: Sanchez saw the wet-floor warning sign before he entered the men’s restroom, the video shows the wet-floor warning sign in the small hallway, Sanchez admitted that he saw a Stripes employee wet-mopping in the hallway—that Sanchez described as a “little hallway”—as he walked to the restroom, and as he exited the. restroom, Sanchez slipped and fell on the wet floor within arm’s reach of the warning sign. The dissent’s view that the summary judgment evidence does not conclusively establish that the warning was adequate as a matter of law suggests that property owners’ duty to “take safety measures that an. ordinary, reasonable landowner would take,” see Austin, 465 S.W.3d at 203-04, requires them to warn invitees on a square-foot by square-foot, minute-by-minute basis.

While we agree that circumstances involving greater distances and times could raise fact questions on the adequacy of a warning, the facts here do not. Sanchez does not cite, and we have not' found, any precedent that requires such a granular warning. To the contrary, imposing such a granular warning standard would require property owners to “take safety measures beyond those that an ordinary, reasonable landowner would take.” Contra Austin, 465 S.W.3d at 204; accord Brooks, 303 S.W.3d at 925; Bill’s Dollar Store, 77 S.W.3d at 370.

E. Warning was Adequate

Having considered the warning in the context of the totality of the circumstances, we conclude “the warning identi-fie[d] and communicate[d] the existence of the [wet floor] in a manner that a reasonable person would perceive and understand.” See Henkel, 441 S.W.3d at 253; see also Austin, 465 S.W.3d at 203-04. Here, “the evidence conclusively establishes that [Stripes] adequately warned [Sanchez] of the condition, [and thus Stripes] was not negligent as a matter of law.” See Henkel, 441 S.W.3d at 252; see also Austin, 465 S.W.3d at 204. Because the warning was adequate as a matter of law, we need not address whether the condition was open and obvious.

Conclusion

Under the facts of this case, where the area in question was relatively small, and the relevant time period was approximately two minutes, we conclude that Stripes met its burden to conclusively negate an element of Sanchez’s premises liability claim. The summary judgment evidence conclusively establishes that Stripes placed a wet-floor warning sign in the hallway outside the restroom where Sanchez fell, Sanchez saw the sign before he entered the restroom, and he saw the Stripes employee wet-mopping the hallway floor— making previously dry areas of the hallway floor wet—before he exited, the restroom and slipped and fell on the wet hallway floor.

Because Stripes met its- burden to conclusively negate an essential element , of Sanchez’s claim, Stripes was entitled to judgment as a matter of law. The trial court properly granted summary judgment for Stripes, and we affirm the trial court’s judgment.

Dissenting Opinion by:

Irene Rios, Justice

I respectfully dissent from the.majority opinion that the trial court jlroperly granted Stripes’s hybrid traditional and no-evidence motion for summary judgment.

The Supreme Court "of Téxas has outlined the standard of review which we must, apply when reviewing a summary judgment, directing that we must take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). The movant must show there is no material fact issue and that the movant is entitled to judgment as a matter of law. McNamara, 71 S.W.3d at 311. Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); see King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). We consider the summary judgment evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, and we disregard contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A nonmovant defeats a no-evidence summary judgment if the nonmovant presents more than a scintilla of probative evidence on each element of his claim. King Ranch, Inc., 118 S.W.3d at 751.

A premises owner has “a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the [owner] is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (op. on certified question). If evidence conclusively establishes the property owner adequately warned the injured party of the condition^ then the property owner was not negligent as a matter of law. Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). To be adequate, a warning must be more than a general instruction; the warning must notify of the particular dangerous condition. TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009).

As the majority states, the adequacy of a warning must be examined in the context of the totality of the circumstances. Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 2014) (per curiam). However, we are still bound to view the totality of the circumstances by reviewing the evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in his favor. McNamara, 71 S.W.3d at 311. Therefore, turning to the facts of this case and reviewing the totality of the' circumstances under the standard we are required to usé, the record reveals the facts described below.

Mr. Sanchez ■ testified in his deposition that before he entered the Stripes restroom, he saw a wet-floor sign “in the area,” but the surrounding floor was dry. The sign was located at the hallway entrance—not the entrance of the restroom. The surveillance video footage shows that Mr. Sanchez stopped near the sign, and it appears Mr. Sanchez looked toward the back of the hallway. Mr. Sanchez testified he saw a Stripes employee wet-mopping toward the back of the hallway. In a recorded statement taken the day after he fell, Mr. Sanchez stated the employee was wet-mopping in the hallway past the restroom entrance “towards the back.” Mr. Sanchez further stated he asked the employee if the restroom had been mopped because it seemed she had just mopped all that area. According to Mr. Sanchez, the employee did not respond, but the restroom floor was wet when he entered.

The surveillance video footage shows the Stripes employee emerged from the hallway, moved the wet-floor sign, mopped in that area and in front of the restroom doors, and replaced the wet-floor sign in the same place while Mr. Sanchez was in the restroom. Mr. Sanchez cannot be seen exiting the restroom on the video surveillance footage, but he testified that when he took a step outside the restroom, he slipped and fell, hurting his knee. The surveillance video footage shows Mr. Sanchez slid across the floor and landed near the wet-floor sign, where he had previously walked without incident.

The review of the evidence favorable to Mr. Sanchez shows this case is distinguishable from the cases relied upon by Stripes and the majority. In Bill’s Dollar Store, the cashier’s warning to a customer to “watch the wet spot” was considered an adequate warning regarding a wet floor caused by spilled cola. Bill’s Dollar Store, 77 S.W.3d at 370. In Brooks v. PRH Invs., Inc., a verbal warning to “‘be careful’ because the ‘floor may be a little damp’ ” combined with a wet-floor sign and the complainant seeing an employee wet-mopping'in the restroom where she slipped, was also considered adequate to satisfy the property owner’s duty. Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.-Texarkana 2010, no pet.). In Golden Corral v. Trigg, the warning sign found adequate advised of a wet floor in the vicinity of the sign, which was a few feet from where the complainant slipped and fell. Golden Corral v. Trigg, 443 S.W.3d 515, 517-20 (Tex. App.-Beaumont 2014, no pet.).

However, the warnings addressed in these cases warn of a dangerous existing condition. In this case, the condition addressed by the wet-floor sign did not exist at the time the warning was given. Further, unlike in Golden Corral, the only floor that was wet at the time Mr. Sanchez viewed the wét-floor sign was behind the restroom door, and possibly at the end of the hallway. See id. at 517. Also, unlike in Brooks, the wet-mopping witnessed by Mr. Sanchez was at the end of the hallway— not,where he was walking or in an area he would walk across to exit the restroom. Brooks, 303 S.W.3d at 925.

The circumstances surrounding Mr. Sanchez’s' initial viewing of that warning suggested the condition about which the sign warned had passed. The floor was dry and: appeared to have been mopped. The employee was mopping at the end of the hallway, away from Mr. Sanchez when he entered the restroom. Because of these circumstances, it would not be reasonable for Mr. Sanchez to realize or know the existing sign placed in the same spot after the employee mopped outside the restroom warned of a new danger. Rather, it would be reasonable for a person leaving a restroom under these circumstances to expect that a floor that appeared to have already been mopped would NOT have beep mopped, and made wet, again. We must 'indulge every reasonable inference in Mr. Sanchez’s favor.

Furthermore, the deposition testimony of Miriam Laabs regarding Stripes’s policy concerning mopping and placement of wet-floor signs creates doubt as to whether the warning was adequate to warn of the wet floor in the hallway outside the restroom. Ms. Laabs, an employee with Stripes for twenty-three years, testified as follows:

Q. Is.it okay to be mopping a bathroom but have a wet floor sign in the hallway where the floor is dry?
A. We usually do that.
Q. Okay.
A. Just to warn the customer, as they’re going into the restroom that the floor is wet, and then there should be another one inside the restroom.

Thus, the sign’s placement on the dry floor in the hallway was consistent with Stripes’s policy to warn customers of the present wet-floor condition in the restroom. We are directed to resolve doubts in favor of the nonmovant, Mr. Sanchez. Accordingly, I would resolve any doubt concerning whether the sign was there to warn of the existing dangerous condition in the restroom or a future dangerous condition outside the restroom in Mr. Sanchez’s favor. Also, because the summary judgment evidence does not include dimensions, photos, or video footage of the entire hallway outside the restrooms, we cannot characterize the length of the hallway in a way that disfavors Mr. Sanchez.

Under these circumstances, I cannot hold as a matter of law the wet-floor sign was an adequate and reasonable warning of a future dangerous condition. Viewing the evidence in the light most favorable to Mr. Sanchez, I would hold the summary judgment evidence in this case -raises a genuine issue of material fact such that reasonable and fair-minded people could differ in their conclusions. Further, the burden rested with Stripes to show its warning was adequate under these circumstances, and I would hold Stripes failed to conclusively establish it provided adequate warning of the dangerous condition of which Mr. Sanchez was not aware. Additionally, I would hold Mr. Sanchez has presented more than a scintilla of probative evidence on each element of his claim.

The summary judgment evidence did not transform the issue from a question of fact to be decided by a jury into a question of law to be decided by the trial court as a matter of law. Therefore, I would reverse the judgment of the trial court and remand for further proceedings.

Accordingly, I respectfully dissent.  