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TEXAS COURT OF APPEALS, THIRD
DISTRICT, AT AUSTIN

NO. 03-06-00211-CV

Gary Fair and Linda Fair,
Appellants

v.

Scott and White Memorial Hospital and
Scott, Sherwood and Brindley Foundation;

Scott and White Memorial Hospital; and Scott and
White Properties, Inc., Appellees

FROM THE DISTRICT
COURT OF BELL COUNTY, 146TH JUDICIAL
DISTRICT

NO. 208,931-B, HONORABLE RICK MORRIS, JUDGE
PRESIDING

M E M O R A N D U
M O P I N I O N

Gary Fair slipped and fell on ice that had accumulated outside Temple's
Scott and White Memorial Hospital during a winter storm. Mr. Fair and his
wife, Linda, sued the Scott and White Memorial Hospital and Scott,
Sherwood and Brindley Foundation, Scott and White Properties, Inc.,
and "Scott and White Memorial Hospital" (collectively "appellees") for
damages arising from the injuries Mr. Fair sustained as a result of his
fall. The appellees moved for summary judgment on three grounds relevant
to this appeal: (1) as a matter of law, the condition of accumulated ice
did not pose an unreasonable risk of harm under the principles enunciated
in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004)
(per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d
437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had
accumulated due to natural forces and had remained in its natural state;
(2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the
Scott, Sherwood and Brindley Foundation was the sole owner, occupier or
manager of the premises at issue and there is no evidence that Scott and
White Properties, Inc. and "Scott and White Memorial Hospital" were.
(1) The district court granted appellees' motion in its entirety
without stating the grounds and rendered final judgment that the
Fairs take nothing on their claims. The Fairs appealed.

Although the Fairs appeal the judgment as to all three appellees, they
have not challenged the "no evidence" ground that could support summary
judgment for Scott and White Properties, Inc., and "Scott and White
Memorial Hospital." Consequently, we will affirm the district court's
judgment as to those parties. See Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State
ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we
conclude on this record that the Scott and White Memorial Hospital and
Scott, Sherwood and Brindley Foundation ("the Foundation") has not
established its entitlement to summary judgment with regard to the Fairs'
claims against it, we must reverse that part of the judgment and remand
for further proceedings.

We review the district court's summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
Knott, 128 S.W.3d at 215. Summary judgment is proper when there
are no disputed issues of material fact and the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v.
Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128
S.W.3d at 215-16). In deciding whether there is a disputed material fact
issue precluding summary judgment, we take as true proof favorable to the
non-movant, and we indulge every reasonable inference and resolve any
doubt in favor of the non-movant. Randall's Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v.
Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st
Dist.] 2006, no pet.). We may affirm a summary judgment when the record
shows that a movant has conclusively disproved at least one element of
each of the plaintiff's claims or has established all of the elements of
an affirmative defense as to each claim. Am. Tobacco Co., Inc. v.
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works,
Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex.
App.--Houston [14th Dist.] 2006, pet. denied).
(2)

The Fairs allege that appellees were negligent in failing to exercise
ordinary care to discover and make safe or warn of the accumulated ice on
which Mr. Fair allegedly slipped and injured himself. This is a theory of
premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d
74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and
"negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d
262, 264 (Tex.1992) (same). Under a premises liability theory, the duty
owed by the premises owner or occupier--here, the Foundation--depends upon
whether the entrant had the status of an invitee, licensee, or trespasser.
For purposes of this summary judgment proceeding, the Foundation does not
dispute that both Mr. and Mrs. Fair had the status of invitees. An
owner or occupier owes a duty to its invitees to exercise reasonable care
to protect them from dangerous conditions on the premises known or
discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d
934, 936 (Tex. 1998). This duty, however, "does not make the possessor an
insurer of the invitee's safety." Id. To establish the owner or
occupier's liability to an invitee for a condition existing on the
premises, the following elements must be proven: (1) the owner or occupier
had actual or constructive knowledge of a condition on the premises; (2)
the condition posed an "unreasonable risk of harm"; (3) the owner or
occupier did not exercise reasonable care to reduce or eliminate the risk;
and (4) the owner or occupier's failure to use such care
proximately caused the invitee's injury. CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees'
summary-judgment motion targeted the second element: it contended
that, as a matter of law, natural accumulations of ice do not pose an
unreasonable risk of harm and that the ice accumulation in which
Mr. Fair slipped was in its natural state.
(3)

In support of this legal principle, appellees relied on the supreme
court's holding in M.O. Dental Lab that "[o]rdinary mud that
accumulates naturally on an outdoor concrete slab without the assistance
or involvement of unnatural contact is, in normal circumstances, nothing
more than dirt in its natural state and, therefore, is not a condition
posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland
Court of Appeals' earlier holding in Surratt, in which it applied
the "Massachusetts Rule" that accumulated ice in its natural condition
does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The
Fairs contend that both cases are distinguishable--they observe that
M.O. Dental Lab involved mud, not ice, and portray the rationale
of Surratt as limited solely to falls occurring in parking lot
locations more remote than the site of Mr. Fair's fall.
(4) In the alternative, the Fairs urge that appellees did not
meet their summary-judgment burden of conclusively demonstrating that the
ice at the site of Mr. Fair's fall was in its natural condition at
the time of the fall. We agree with the Fairs that appellees did not meet
their summary-judgment burden as to whether the ice where Mr. Fair fell
was in its natural condition.

In support of their summary-judgment motion, appellees submitted the
affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN
television station, and Melissa Frei, Grounds Supervisor at Scott and
White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred
to having 25 years' experience as a meteorologist, stated that
"[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front
arrived in the Temple, Texas area," and that the temperature fell below
freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze
on contact with exposed surfaces," and "[i]ce pellets were also observed
in the area helping create a glaze on sidewalks and roads." "By midnight,"
Anderson added, ".50" of snow was on the ground, and the temperature had
fallen to 25 degrees."

"Winter precipitation continued until the early morning of Tuesday,
February 25, 2005," according to Anderson, with ".12" to .55"
additional precipitation since midnight." Further, "an additional trace of
snow was measured," and "periods of ice pellets and ice
fog were observed." Anderson noted that secondary roads across
most of Bell County were rendered impassible due to accumulations of
1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to
22 degrees shortly after dawn and warmed to only 26 by late afternoon."
The temperature did not rise above freezing until the afternoon of
Wednesday, February 27, Anderson continued, and the roads were not
clear until the following day.

In her affidavit, Frei discussed the impact of the ice storm on the
Scott and White grounds in particular. She averred that, as Grounds
Supervisor, she was personally present at the hospital on February 24 and
25, 2005, and "personally observed" that an ice storm hit the Temple area
on the 24th and caused ice accumulations "in the area, including, but not
limited to, the parking lot, road, and steps in front of the Special
Treatment Center at the hospital." According to Frei, "All exposed
surfaces on the parking lot, road, and steps in this location were covered
with ice." Regarding the condition of the ice accumulations at the time
and location where Mr. Fair fell, Frei stated that "[t]he ice
accumulations were caused by forces of nature, and not by any human
action" and that "[t]he accumulations of ice in the parking lot and road
remained in their natural state until after Gary Fair is reported to have
fallen in this location." Other than to state that the facts within her
affidavit "are within my personal knowledge" and that she "personally
observed" them in her capacity as Grounds Supervisor, Frei did not
elaborate on the basis of her knowledge regarding the condition of the ice
at the time and location where Mr. Fair fell.

The Fairs attached to their summary-judgment response excerpts from
Frei's deposition in which she testified that she had "no idea" or
familiarity regarding the particular incident where Mr. Fair fell and was
injured, that she had not been at the scene or been called to the scene,
and that she had not heard about the incident during the day on which it
occurred.
(5)

Frei's deposition testimony controverts her assertions of personal
knowledge regarding the condition of the ice accumulations at
the time and location where Mr. Fair fell that were contained
in her affidavit. Accordingly, Frei's affidavit cannot support
summary judgment with regard to whether the ice accumulations where
and when Mr. Fair fell were in their natural state. See
Tex. R. Civ. P. 166a(c), (f).

Appellees also attached excerpts from Mr. Fair's deposition, in which
he described the circumstances of his fall. Regarding the condition of the
ice at the site of the fall, appellees point to Mr. Fair's testimony
that the location where he fell had not been sanded. This
testimony alone does not conclusively establish that the ice where
Mr. Fair fell was necessarily in its natural condition.

Appellees did not present any other summary-judgment evidence regarding
whether the ice accumulation where and when Mr. Fair fell was in its
natural condition. On this record, appellees did not conclusively
establish that the ice accumulation was in its natural state and was
not an unreasonably dangerous condition. For these reasons, we affirm
the district court's summary judgment that the Fairs take nothing on
their claims against Scott and White Properties, Inc., and "Scott and
White Memorial Hospital," but reverse its judgment that the Fairs take
nothing on their claims against the Foundation. We remand for further
proceedings consistent with this opinion.

____________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed in part, Reversed and Remanded in part

Filed: June 13, 2008

1. The Fairs also filed a cross-motion for summary
judgment, which the district court denied. The Fairs do not appeal from
this ruling, as the grounds they presented in their cross-motion did not
overlap with the appellees' three grounds.

2. On appeal, the Fairs filed an appendix to their
brief containing what appear to be the entire transcripts from the
depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei,
and security department manager Thomas Suhling. Appellees filed a motion
to strike any portions of these depositions that had not been included in
the summary-judgment record. The Fairs subsequently agreed to this
requested relief. We grant the motion and strike all portions of these
depositions that were not included in the summary-judgment record.

3. On appeal, appellees assert that, "[e]ven in the
absence of Wal-Mart and M.O. Dental Lab, Appellees would
have been entitled to summary judgment" because whatever duty they had to
warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's
admitted awareness of it and "there was nothing to warn him about."
However, appellees did not raise this ground in their motion, so we cannot
consider it as a basis for affirming the summary judgment. See City of
Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).

4. But see Gagne v. Sears, Roebuck & Co.,
201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O.
Dental Lab, we see no basis for differentiating between a natural
accumulation of ice in the parking lot and one on a sidewalk near a
business entrance. Therefore, we hold that the natural accumulation of ice
on a sidewalk near the entrance of a business does not pose an
unreasonable risk of harm to invitees.").

5. Q: Do you keep records of - Do you have any
familiarity with the particular incident where Mr. Fair slipped and fell
and was injured?

A: I have no idea.

Q: You weren't at the scene or called to the scene?

A: No, sir.

Q: You never met Mr. Fair?

A: No, sir.

Q: Did you go to the scene - Or did you hear about the accident during
the day?

A: No, sir.