Yumnah Said v. Dick's Sporting Goods, Inc.

AFFIRMED and Opinion Filed June 28, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00176-CV

YUMNAH SAID, Appellant
V.
DICK'S SPORTING GOODS, INC., Appellee

On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-09591

MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Nowell
Appellant Yumnah Said sued appellee Dick’s Sporting Goods, Inc. (DSG)

after she tripped over a wagon handle on the sales floor and suffered injuries. The

trial court granted DSG’s no-evidence motion for summary judgment on Said’s

premises liability claim. In a single issue, Said argues she raised a genuine issue of

material fact on each element of her claim. We affirm.

Background

On July 24, 2019, Said tripped over a wagon handle in the football cleats aisle

of DSG. Said described the area as follows: “[T]he shoes are to the left, and the
clothes are to the right, and they had the boxes in the middle . . . [in] the open aisle

or the one that should be an open aisle.” She explained the wagon was behind the

stacked boxes in the aisle so she could not see it from the direction she was walking.

As she walked by the boxes, she tripped over the wagon handle. Said was five

months pregnant at the time and twisted her back to mitigate the fall. She filed suit

alleging negligence and premises liability.

DSG filed a no-evidence motion for summary judgment challenging both

causes of action. DSG contended there was no evidence (1) the wagon handle posed

an unreasonably dangerous risk of harm; (2) DSG knew or should have known of

the alleged unreasonably dangerous condition; or (3) DSG’s alleged failure to use

reasonable care proximately caused Said’s alleged injuries. DSG also argued Said

was limited to a premises theory of liability; therefore, her negligence claim was

without merit.

Said filed a response and attached her deposition testimony and discovery

responses. She argued these documents “on their face” established more than a

scintilla of evidence raising a genuine issue of material fact regarding the

unreasonable and dangerous nature of the condition because she was walking and

tripped on the wagon handle “behind the boxes that were stacked” in the aisle. She

argued, in part, DSG had knowledge of the dangerous condition because advertising

and advertising displays were entirely within its management and control. On

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January 19, 2023, the trial court granted DSG’s no-evidence motion for summary

judgment without stating the grounds. This appeal followed.

Standard of Review

A no-evidence motion for summary judgment is appropriate when there is no

evidence of one or more essential elements of a claim on which the adverse party

will bear the burden of proof at trial. TEX. R. CIV. P. 166a(i). “When reviewing a

no-evidence summary judgment, we review the evidence presented by the motion

and response in the light most favorable to the party against whom the summary

judgment was rendered, crediting evidence favorable to that party if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

A trial court must grant a no-evidence motion for summary judgment unless

the nonmovant produces more than a scintilla of evidence to raise a genuine issue of

material fact on the challenged elements. TEX. R. CIV. P. 166a(i); Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). A nonmovant produces

more than a scintilla of evidence when the evidence “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). A nonmovant produces

no more than a scintilla when the evidence is so weak that it does no more than create

a mere surmise or suspicion of a fact. Forbes Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 172 (Tex. 2003).

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Premises Liability Law and Discussion

A plaintiff seeking damages in a premises liability case must prove (1) the

owner/operator 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) such failure proximately caused the plaintiff’s injuries. Wal–Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). DSG owed Said, as an invitee, a duty

to exercise reasonable care to protect her from dangerous conditions in the store that

were known or reasonably discoverable, but it was not an insurer of her safety. Wal–

Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

To prevail, Said had to prove, among other things, that DSG had actual or

constructive notice of the wagon handle lying in the aisle. There is no one test for

determining actual or constructive knowledge that an alleged condition presents an

unreasonable risk of harm. Dubiel v. Dr. Pepper Snapple Grp., Inc., No. 05-17-

01050-CV, 2018 WL 6716655, at *5 (Tex. App.—Dallas Dec. 21, 2018, no pet.)

(mem. op.). Said could satisfy the notice element by establishing that (1) DSG

placed the wagon handle on the floor, (2) DSG actually knew the wagon handle was

on the floor, or (3) it is more likely than not the condition existed long enough to

give DSG a reasonable opportunity to discover it. Reece, 81 S.W.3d at 814.

In determining whether an owner had knowledge of an unreasonably

dangerous condition, courts generally consider whether the premises owner has

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received reports of the alleged danger created by the condition or reports of prior

injuries. Dubiel, 2018 WL 6716655, at *5; see also Zook v. Brookshire Grocery

Co., 302 S.W.3d 452, 455 (Tex. App.—Dallas 2009, no pet.) (considering lack of

reports of previous injuries for whether owner knew or should have known of

dangerous condition). Said produced no evidence of prior reports or injuries caused

by the wagon handle. To the extent she asserts the advertising display boxes were

entirely within DSG’s control thereby raising a genuine issue of material fact as to

DSG’s knowledge of the wagon handle, we disagree. Although proof a premises

owner created a condition that posed an unreasonable risk of harm may constitute

circumstantial evidence of knowledge, evidence of the owner’s knowledge or

appreciation of the dangerous condition must be established. Dubiel, 2018 WL

6716655, at *6. Said has not cited to any evidence DSG placed the wagon handle in

the aisle or knew there was a problem with the display or the wagon.

What constitutes a reasonable time for a premises owner to discover a

dangerous condition will vary depending upon the facts and circumstances

presented. Reece, 81 S.W.3d at 816. But there 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. Id. Otherwise, owners

would face strict liability for any alleged dangerous condition on their premises, an

approach the Texas Supreme Court has clearly rejected. Id. Said produced no such

evidence. She testified, “I was just walking, and I tripped on a handle of the wagon,

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and the wagon was behind the boxes that were stacked in the hall. So I couldn’t see

it.” She did not see any employees working nearby when she tripped, and there was

nothing else on the floor contributing to the fall.

It was Said’s burden to establish it was more likely than not that DSG should

have been aware of the wagon handle in the aisle because it existed long enough to

give DSG a reasonable opportunity to discover and rectify it, or to warn about it.

Because Said failed to meet that burden, the trial court did not err by granting the

no-evidence motion for summary judgment. We need not address whether she

produced more than a scintilla of evidence on the other challenged elements. TEX.

R. APP. P. 47.1; TEX. R. CIV. P. 166a(i); Rodriguez v. Lusk, No. 08-03-00385-CV,

2004 WL 2307443, at *3 (Tex. App.—El Paso Oct. 14, 2004, no pet.) (mem. op.)

(affirming no-evidence summary judgment when no evidence supports any one of

the challenged elements). We overruled Said’s issue.

Conclusion

We affirm the trial court’s judgment.

/Erin A. Nowell/
ERIN A. NOWELL
230176F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

YUMNAH SAID, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-23-00176-CV V. Trial Court Cause No. DC-21-09591.
Opinion delivered by Justice Nowell.
DICK’S SPORTING GOODS, INC., Justices Miskel and Kennedy
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 DICK’S SPORTING GOODS, INC. recover
its costs of this appeal from appellant YUMNAH SAID.

Judgment entered June 28, 2024.

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