## IN THE SUPREME COURT O F TEX AS

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. 13-0712

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### C H R IS T O P H E R 

### H E N K E L A N D 

### L IS A 

### H E N K E L 

### , P E T IT IO N E R S 

### ,

v . 

### C H R IS T O P H E R 

### N O R M A N 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 P ER CURIAM
J U S T I C E B R O W N did not participate in the de cision.
At issue in this premises li ability case is whether a homeowner’s “don’t slip” statement to

a mail car

rier was adequate as a matter o f l aw t o warn him of an icy sidewalk. The trial court deter mined that it was and g rante d summary judgme nt to the homeowner defe ndants. The court of
appea ls reve rsed. Be cause we ag ree with the trial court, we reve rse the court of appea ls’ judgme nt and re mand to the cour

t of appe als for it to consider the issues it did not reach. The trial court g rante d summary judgme nt for the defe ndants in this case , so our standard of revie w is de novo. See Buck v. Palmer , 381 S.W .3d 525, 527 (Tex. 2012). We examine the rec ord
in the light most favor able to the nonmovant, indulge ever y rea sonable infere nce ag ainst the motion and likewise resolve any doubts ag ainst it. Id. Acc ording ly , our rec itation of fac ts resolves all doubts in favor of Christopher Norman, the plaintiff and nonmovant.On Saturday , J anuar y 9, 2010, mail car

rier Norman was delivering mail in Houston. The day

wa s colder than normal and the National Weather Service had issued a hard fre eze war n i n g fo r Fr iday throug h Sunday

. Neither rain, sleet, nor snow was repor ted in the are a, althoug h L isa Henke l,

one of the homeowner defe ndan t s , t es tified both that she was awa re of icy conditions in her neig hborhood and that her daug hter had slipped on some ice in the road that morning befor e Norman delivere d the mail.
As Norman delivere d mail he would walk on the sidewalks of some houses and throug h the lawns of others. On the morning he fell, he walked throug h the lawn of the house of Christopher and
L isa Henke l in order to deliver their mail. L isa was standing at the door so Norman handed her the mail. As he turned to leave and continue on his route, she said “don’t s l i p . ” Ne v er t heless, as Norman beg an walking awa y on the Henke ls’ sidewalk he slipped and fell. He denied having seen ice on his route that morning and denied seeing any on the Henke ls’ proper ty befor e he fell.
No rman sued the Henke ls, alleg ing that he was injured by the fall and the Henk el s we re

awa re of ice on the sidewalk, y et they took no action to pr event the unnatura l a ccumulation of ic e,

remove the ice, or otherwise reme dy the slick conditions. The Henke ls filed a Motion for Summary
J udg ment. By their motion the Henke ls asser ted that there was no g enuine issue of materia l fac t as
to whether they failed to war n Norma of any potenti al d an ger beca use “all evidenc e prese nted by either side shows

. . . L isa

. . . expli citly war ned [Norman] re g arding potentially icy conditions just seconds befor e he fell.” I n response , Norman argu ed t h at any war ning by L isa was g ener al, nonspecific , and inade quate.

2A traditional summary judgme nt motion is proper ly g rante d wher e a defe ndant conclusively

neg ates at l east one essential element of a cause of action. Frost Nat’l Bank v. Hernande z , 315
S.W .3d 494, 508 (Tex. 2009). The tria l court g rante d the Henke ls moti on and Nor man appe aled. By a two to one decision the court of appea ls reve rsed, holding that “[a] g ener al instruction
not to slip or t ri p or fall is not conclusive evidence of a war ning, let alone an adequate warning .”
Norman v. Henk

el , 407 S.W .3d 502, 505 (Tex. App.—Houston [14t h Dist.] 2013, pet. g rante d). The dissenting Justi ce w ould have held that L isa’s warning was a dequate as a ma tter of law beca use it “spec ifically informed Norman of the particula r hazard—the slippery g round.” Id. at 506 (B rown, J ., dissenting)

. I n their petition for revie w the Henke ls arg ue that L isa’s statement was an adequate war ning

as a mat t er o f law because she i nformed Norman about the conditi on of t he property on which he bases his claim. Norman counter s that L isa’s war n i n g was a g ener al instruction and was not 1 adequate bec ause she was re quired to wa rn him of the par

ticular c ondition—the ice. The parties ag ree that Norman was an invitee. Gene rally , premises owner s s u ch as the Henke ls have a duty to protec t invitees from, or war n them of, conditions posing unrea sonable risks of harm if the owner s knew of the conditions or, i n the exercise of rea sonable car e, should have known of them. See TXI Operations, L.P. v. Perry , 278 S.W .3d 763, 764-65 (Tex. 2009). To preva il

on a premises liability claim ag ainst a proper ty owner , an in

jured invitee must establish four

T h e H e n k e l s a l s o a r g u e t h a t L i s a h a d n o d u t y t o w a r n N o r m a n a n d t h e r e w a s n o u n r e a s o n a b l y d a n g e r o u s 1
c o n d i t i o n b e c a u s e t h e i c e w a s a n a t u r a l a c c u m u l a t i o n . T h e y d i d n o t a s s e r t t h o s e m a t t e r s i n t h e i r m o t i o n f o r s u m m a r y j u d g m e n t s o w e d o n o t c o n s i d e r t h e m . S e e S t i l e s v
. R e s o l u t i o n T r u s t C o r p
. , 8 6 7 S

. W

. 2 d 2 4 , 2 6 ( T e x . 1 9 9 3 ) ( “ [ W ] e h o l d t h a t a s u m m a r y j u d g m e n t c a n n o t b e a f f i r m e d o n g r o u n d s n o t e x p r e s s l y s e t o u t i n t h e m o t i o n o r r e s p o n s e . ” )

.

3elements: (1) the proper ty owner had actua l or constructive knowledg e of the condition causing the injury ; (2) the c ondition posed an unrea sonable risk of harm; (3) the proper ty owner failed to take

rea sonable car e to reduc e or eliminate the risk; and (4) the proper ty owner ’s failure to use rea sonable

car e to reduc e or eliminate the risk was the proxi mate cause of injuries to the invitee. CMH Homes,
Inc. v . Daene n , 15 S.W .3d 97, 99 (Tex. 2000). The third element is neg ated if the proper ty owner either adequately war ned the invitee about the condition or took rea sonable actions desig ned to make it r easona bly safe

. See TXI Operations , 278 S.W .3d at 765

. I f t he evidenc e conclusively establishes that the proper ty owner adequately

war ned the injured party of the condition, then the proper ty owner was not ne g lige nt a s a matter of law. Bill’s Dollar Store, Inc. v. Bean , 77 S.W .3d 367, 369 (Tex. App.—Houston [14t h Dist.] 2002,
p et

. d en i ed ). To be adequate, a war ning must be more than a g ener al instruction such as “be

car eful” ; the war

ning must notify of the particula r condition. TXI Operations , 278 S.W .3d at 765.
I n TXI , for example, a speed limit sign was not an adequate war ning of a pothole. Id. We held that the sign “n ei t h er i n fo rm ed the driver of road hazards g ener ally , nor did it identify the particula r hazard.” Id ; see State v. McBride , 601 S.W .2d 552, 556-57 (Tex. Civ. App.—Waco 1980, writ ref ’d n.r.e.) (holding signs that rea d “35 MPH” and “SL OW” wer e insufficient to wa rn of the actua l condition of the construc tion area , which wa s that it was muddy and slick whe n wet). I

n contra st,

a wa rning by a cashie r to a customer to “ watch the wet spot” wa s an ade quate wa rning as a ma tter of law. Bill’s Dollar Store , 77 S.W .3d at 370. And a wet floor war ning sign and verba l war

ning to “‘be car eful’ beca

use the ‘floor may be a littl e damp’” was adequa te as a matter of law to discharg e

4a proper

ty owner ’s duty to an i n v i t ee . B r o o ks v. PRH Invs., Inc. , 303 S.W .3d 920, 925 (Tex. App.—Texarkana

2010, no pet.). Turning to the fac ts of this case , Norman testified in his deposition that L isa told him “don’t

s l i p . ” He asser

ts that this war

ning was a g ener al instruction simil ar in nature to the g ener al 2
instruction in TXI and did n o t adequa tely war n him of the dang erous condition. We disag ree . Warning s must be taken in context of the totality of the circ umstances. The war ning in TXI

—a speed limit sign—did not inform the driver of the actua l condition that cause d the injury —a pothole. TXI Operations , 278 S.W .3d at 765. B ut L isa’s statement wa s not a g ener al “be car eful” or “g o slow”

war ning. Under the circ umstances the statement Norman hear d her make, “don’t slip,” could only have been taken by a rea sonable person as a war ning o f a specific condition—a slippery walking surfa ce. Norma n a ls o a rg ues that L isa’s war

ning was inadequa te beca

use she did not specific ally war n him of ice o n the walkwa y , asser ting that ice was the dang erous condition, not the potential for slipping. He say s that beca use one might slip for any number of rea sons such as water , paper , fre shly

mow ed g rass, potter’s clay , loose tile, or even the prover bial banana peel on the g round, L isa’s

war ning to not slip actua lly convey ed “eve ry thing and nothing.” Ag ain, we disag ree . Under the circ umstances L isa was not r equire d to w arn of the ice itself a s opposed to the slippery condition.
See Keetch v. Kroger , 845 S.W .2d 262, 264 (Tex. 1992) (re fer encing the dang erous condition as “the slippery spot” on the floor). A war ning of the specific materia l causing a condition is not require d,

I n L i s a ’ s d e p o s i t i o n s h e s a i d s h e t o l d N o r m a n “ b e c a r e f u l

. I t ’ s i c y o u t t h e r e t o d a y , ” b u t a s n o t e d p r e v i o u s l y , 2
w e r e v i e w t h e e v i d e n c e i n N o r m a n ’ s f a v o r . 5so long as the exis tence of the condition itself is convey ed. For example, war nings in Bill’s Dollar
Store and Brooks wer e held to ha ve been adequate even thoug h they identified only

the dang erous condition (we t floors), not the specific substances that made them wet. Brooks , 303 S.W .3d at 925; Bill’s Dollar Stor e , 77 S.W .3d at 370.
I n sum, absent specia l circ umstances which are not prese nt here , a proper ty owner ’s war

ning
to an invitee of an unrea sonably dang erous condit i o n i s ad eq uate if, g iven the totality of the surrounding circ umstances, the war ning identifies and communicates the exis tence of the condition
in a manner that a rea sonable person would perc eive and understand. Her e, tempera tures had been and wer e well below fre ezing and there is no evidenc e of any other circ umstance that a rea sonable
person might have contemplated would prec ipitate L isa’s “don’t slip” war ning. Norman hear d her
statement and it was adequa te in light of the totality of the circ umstances to aler t a rea sonable person in his posit ion that there w ere slippery conditions caused by

the fre ezing tempe rature s. Assumin g, wi t h o ut deciding , that ice on the Henke ls’ sidewalk cre ated an unrea sonably dang erous condition, L isa adequa tely war ned Norman of it. Norman reque sts that if we reve rse the
court of appea ls’ judgme nt, we rema nd the case to the court of appea ls for it to consider his alterna te points raised in, but not addre ssed by , that court. Acc ording ly , we reve rse the judgme nt of the court of appe als and re mand the ca se to that court f or it to consider Nor

man’s additional issues.

OP INION DELIVERED: Aug ust 22, 2014

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