* John T. Boyd, Chief Justi ce (Re t.), Sev enth Court of Ap peals, sitting by

assignment

. NO. 07-01-0473 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 4, 2 002

______________________________ LANA C. LAFEBRE, A PPELLANT

V. COMP USA, INC., APPELLEE

_________________________________ FROM THE COUNT Y COURT AT LAW NO. 3 OF L UBBOCK COUNTY; NO. 2000-589,556; HO NORABL E WILLIAM R. SHA VER, J UDGE

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. *
After appellant Lana C. La Feb re r ecei ved a favo rab le jury ve rdi ct ag ai nst CO MP USA, Inc . for her prem ises liabil ity claim, thetrial court entered an order granting COMP USA, Inc.’s m otion for judgm ent notwithstand ing the verdict and rendering judg ment that2

LaFebretake nothing against COMP USA, Inc. Challenging the order, LaFebre contends bytw o iss uestha t th ereis s uff icien t ev iden ce u pon w hich a re aso nab le j uro r (1 ) co uld hav e found that COM P USA , Inc. had actual or cons tructive knowledge of t h e unr eas ona bly

dangerous condition w hich proxi m ate ly c aus ed h er d am age s, a nd ( 2) could have based the past and futu re damages a w ards. Based upon the rationale expressed he re i n, we a ff i rm. While shopping at COMP USA, LaF ebre went to the wom en’s restroom . She entered a stall and sat on the toilet seat. Whil e she wa s twisting and reaching for toilet paper loca ted on t he b ack

w all of thesta ll, the toile t seat moved and jerked her violen tly. After flushin g the toil et sh e proceeded to in spe ct t he toilet sea t. With pap er towels i n hand, she lifted the toilet seat and saw t hat a steel bolt was broken. According to LaFebre’s testimon y, she reported the incident to a fem ale em ployee and asked her to accom panyher to the restroomto witness the broken bolt. She also reported the incident to a customer service represe ntative and the store manager, who ask ed he r to m ake a written statem ent.
W hen she left the store, she felt som e pulling and pressure, but did not feel pain unt il the following day, and m ore severe pain two da ys later. At that tim e she sought medical attention and was given mus cle relaxers and pain pills . A n alle rgic reaction to the pain me dication caused her to suffer severeswelling, burning eyes, and blotchy patches3

for three to four

weeks . She incurred $788.20 in m edical expensesand filed a premises liabil ity action against COMP USA.
Trial was to a ju ry at which LaFebre w as the only witness . On cross-exa mination, she tes tified that upon entering the stall, nothing looked out of the ordinary and the restroom seem ed well kept. H owe ver, asshe rea ched ba ckwards fo r the to ilet paper, she estimated that the seat m oved six to s even inches causing her to be injured. According to her tes tim ony , sh e ha d noideaw hen thebolt broke, except that she claim ed it did not break while she used the toilet.
The jur y found COMP

USA w as 75% and LaFebre 25%negligent and awarde d LaFebre $15,000 in actual dam ages plus inte rest an d costs. COMP USA filed a motion for judgm ent notwithstandi ng the verdi ct or in the al ternative a m otion for new t rial all eging thatno evidence was

presented that thebroken bolt existed for a sufficient time before the occurrence for COMP US A to have know ledge of the defect and that there was no evidence presented to supp ort the jury’s award. The t rial court entered an order vacating the pre vio us judg ment an d gr anti ng CO MP USA’smotion for judgm ent notwithstand ing the verdict.
LaFebrechalle nges the tri al court’s or der contendi ng (1) there i s sufficie nt evidence upon which a reasonable j uror could have found that COM P USA had actual or constructive knowledgeof the unreasonably dangerous condition that prox imately caused4

her dam ages, and (2) there is suf ficie nt evi den ce u pon w hich a re aso nab le j uro r co uld have based past and futu re dam ages. We di sagree. Appel late revi ew of a trial cour t’s order granting ajud gm ent not withstanding th e verdict is the sa m e as th at used for a legal insuffi ciency claim. Dowling v. NADW Mktg., In c. , 6 31 S.W .2 d 7 26 , 7 28 (T ex. 1982). We review theevid ence in the lig ht most favorable to the jury’s findings, considering only the evidence and inferences supporting themand reject ing the evidence and inferences to the contrary. Mancorp, Inc . v. Culpepper, 802 S .W .2d 22 6, 227 (Tex. 199 0). In situations “when the ev idence offered to prove a vital fact is so weak as to do no m ore than create a mere surm ise or

suspicion of its existence, t he evidence is, in legal effect, no evidence, and will not support a verdict or j udgme nt.” Robert W. Calvert, “No Evidence” and “Insuff icient Ev idence” P oints of Error, 38 Tex . L. Rev. 361, 363 (196 0).
To prevail on a premises liability claim, an invitee has the burden to prov e t he foll owing elements:
1. a defendant’s actua l or constructive know ledge of som e condition on the premises; 2. th at th e c on di ti on po se d a n u nr ea so na bl e r i sk of ha rm; 3. that th e defendant did not exercise reasonable care to reduce o r eliminate the risk; and 4. thatthe defenda nt’s f ailure to use such care proxim ately caused the injuries.5

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex . 1992). As a n invitee, L aFebre was ow ed a du ty by COMP

USA to exercise reasonable care to p rotect her fromdangerous conditions in th e store that were kn own or rea sonabl y disc overa ble; however, CO MP USA wasnot an insurer of

her safety. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (T ex. 1998). Before apremises owner m ay be charged w ith constructive notice ther e must be pr oo f t ha t a da ng er ou s c on di ti on exi st ed fo r s ome length of time. W al-Mart Store, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex. 2002). Also, an ow ner is not liable for deterioration of a conditi on on its pre mises unless evide nce of know ledge of the condition is presented. CMH H omes , Inc. v. Daen en, 15 S.W.3d 97, 101 (Tex. 2000). Otherw ise, ow ner s w ould face strict lia bility for any dangerous condition on their premises. See id . at 816 n.1 (disapproving cases that sugg est an em ployee’s proxim ity to the hazard is enough to establish construc

tive notice ).
LaFebrewas t he only witness at t rial. She did not present any evidence that COMP USA had actual or constructive knowledge of an inconspi cuous hazard such as a broken bolt securing the t oile t seat. No store em ployees testified nor did anyone who w as charged with the duty

of cleaning the res troom . Altho ugh not presented as a theory at t rial, LaFebreargues in her bri ef that be cause COM P USA knew t hat the toilet paper was located on the back wall of the stall, CO MP US A should have know n that the constant shifting of the toilet seat w hen a person reached for toi let papercreated a dangerous condition. However, even if presented in the trial court, her testimon y would have bee n,6

in lega l eff ect, no evid ence th at COMP USAhad actual or constructive know ledge of a condition on its premises that posed a n unreas onable risk of harm to her. SeeMeeks v. Rosa, 988S. W.2d 21 6, 2 17- 18 ( Tex . 19 99)(ho lding tha t th e tr ial cour t did not err in granting a judgm ent notwithstand ing the ver dict becaus e th e pla intif

f did not pre sen t leg ally sufficientevidence to show that the defendant knew or shoul d have known of a condition thatposed an unreaso nable ri sk of harm). Thus, viewing the evi dence in the light most favorabl e to the jury’s verdict, we neverthel ess con clud e th e tr ial cour t co rre ctly

granted COMP US A’ s mo ti on fo r j ud gme nt n otw it hstanding the verdict. Issue oneis overruled. Our disposition of issue one preterm its consideration of LaFebre’s dam ages issue. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Reavis Justice Do not publish.