Affirmed; Opinion Filed October 10, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01372-CV

TOBY L. FURRH, Appellant

V.

NANCY R. NULISCH, Appellee

On Appeal from the County Court at Law No. 1

Dallas County, Texas

Trial Court Cause No. CC-15-03878-A

MEMORANDUM OPINION

Before Justices Whitehill, Schenck, and Pedersen, III1

Opinion by Justice Schenck

Toby Furrh appeals a take nothing summary judgment entered against him in his premises 

liability lawsuit against Nancy Nulisch for injuries he sustained while climbing a retractable attic 

ladder at her residence. In a single issue, Furrh argues the trial court erred in granting summary 

judgment because Nulisch did not conclusively establish she had no knowledge of an unreasonably 

dangerous condition, and that she conducted a proper inspection of the ladder and its housing 

before Furrh was injured. We affirm the trial court’s judgment. Because all issues are settled in 

law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

 

1 After submission of this case, Justice Brown was appointed to the United States District Court for the Northern District of Texas. Justice 

Pedersen succeeds her as a member of this panel.
BACKGROUND

On or about April 27, 2015, Time Warner Cable dispatched Furrh and a co-worker trainee 

to Nulisch’s residence to install phone, internet and cable services. Upon arriving, Furrh told 

Nulisch he needed to access the attic to assess the installation requirements. The attic is accessible 

by a retractable ladder that is lowered from the ceiling by a pull chain. After lowering the ladder, 

Furrh and the co-worker each climbed up and down the attic ladder one time without incident. 

Furrh then climbed the ladder a second time and stopped near the top to survey the attic with his 

cellphone’s flashlight. At this point, the frame and ladder fell to the floor below. Furrh was injured 

during the fall. As a result, he underwent surgery to his shoulder, followed by physical therapy.

Following this incident, Furrh sued Nulisch claiming she was negligent in maintaining the 

premises. Nulisch answered denying Furrh’s claim and asserting several affirmative defenses. 

After conducting discovery, Nulisch filed a motion for traditional summary judgment. In her 

motion, Nulisch asserted she had no knowledge of an unreasonably dangerous condition and she 

did not fail to inspect or warn of an unknown or latent condition. In response, Furrh maintained 

whether Nulisch had actual or constructive knowledge of the defective ladder is a question of fact 

precluding summary judgment. After considering the summary judgment evidence and reviewing 

the pleadings, the trial court granted Nulisch’s motion for summary judgment. Furrh filed a motion 

for new trial, which was overruled by operation of law. This appeal followed. 

STANDARD OF REVIEW

We review de novo the trial court’s summary judgment. Mid–Century Ins. Co. of Tex. v.

Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d

415, 418 (Tex. App.—Dallas 2012, no pet.). When reviewing a traditional summary judgment 

granted in favor of the defendant, we determine whether the defendant conclusively disproved at 

least one element of the plaintiff’s claim or conclusively proved every element of an affirmative 
defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A matter is conclusively established 

if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Beesley, 358

S.W.3d at 418. The traditional summary judgment movant must show there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sysco

Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed 

material fact issue exists precluding summary judgment, we must take evidence favorable to the 

non-movant as true, and we must indulge every reasonable inference and resolve any doubts in 

favor of the non-movant. Sysco Food Servs., 890 S.W.2d at 800. When, as in this case, the 

court’s order granting summary judgment does not specify the basis for the ruling, we will affirm 

the summary judgment if any of the theories presented to the trial court are meritorious. Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

DISCUSSION

Premises liability is a special form of negligence in which the duty owed to the plaintiff 

depends on the plaintiff’s status on the premises at the time of the injury causing event. Scott &

White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010). The plaintiff is usually classified 

as either an invitee, licensee, or trespasser. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex.

1999). “An invitee is ‘one who enters on another’s land with the owner’s knowledge and for the 

mutual benefit of both.’” American Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied) (quoting Rosas v. Buddie’s Food Store, 518

S.W.2d 534, 536 (Tex. 1975)); see also RESTATEMENT (SECOND) OF TORTS § 332 (1965). 

Here, the summary judgment evidence and the pleadings establish Furrh had been invited 

to Nulisch’s home to install phone, internet and cable services. Accordingly, he occupied the status 

of an invitee at the time he was injured. Premises owners and operators owe a duty to keep their 

premises safe for invitees against conditions on the property that pose unreasonable risks of 
harm. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007); Wal–Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, does not render the premises 

owner or operator an insurer of the invitee’s safety. See, e.g., Gonzalez, 968 S.W.2d at 936.

Premises owners are not strictly liable for conditions that result in injury. Corbin v. Safeway 

Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). The core of the duty depends on actual or 

constructive knowledge of a dangerous condition that a reasonable inspection would reveal. CMH 

Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). To prevail as the invitee plaintiff in this 

case, Furrh had to prove (1) actual or constructive knowledge of some condition on the premises 

by Nulisch that posed an unreasonable risk of harm; (2) Nulisch did not exercise reasonable care 

to reduce or eliminate the risk; and (3) Nulisch’s failure to use such care proximately caused 

Furrh’s injuries. See Gonzalez, 968 S.W.2d at 936 (Tex. 1998) (citing Keetch v. Kroger Co., 845

S.W.2d 262, 264 (Tex. 1992)). 

There is no one test for determining actual knowledge that a condition presents an 

unreasonable risk of harm, but courts generally consider whether the premises owner has received 

reports of prior injuries or reports of the potential danger presented by the condition. Univ. of 

Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam). The actual knowledge 

required for premises liability is of the dangerous condition at the time of the accident, not merely 

of the possibility that a dangerous condition can develop over time. City of Dallas v. Thompson, 

210 S.W.3d 601, 603 (Tex. 2006) (per curiam). 

Constructive knowledge is a substitute in the law for actual knowledge. CMH Homes, 15 

S.W.3d at 102. In premises cases constructive knowledge can be established by showing that the 

condition had existed long enough for the owner or occupier to have discovered it upon reasonable 
inspection.2

 Id. at 102–103. Temporal evidence, or evidence of the length of time the dangerous 

condition existed, is the best indication of whether the premises owner had a reasonable 

opportunity to discover and remedy the situation. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 

816 (Tex. 2002).

Nulisch asserted in her motion for summary judgment that, as a matter of law, she did not 

have actual or constructive knowledge of the dangerous condition that caused Furrh’s injury. In 

support of her motion, Nulisch relied on her own and Furrh’s deposition testimony. Nulisch’s 

testimony established she and her late husband were the first and only owners of the home. They 

purchased the house in 1989. Neither she nor her husband worked on or modified the attic ladder. 

Nulisch and other invitees to her home had climbed the attic ladder prior to Furrh’s fall without 

incident. An exterminator had been coming to Nulisch’s property for years, including the month 

before the incident, and used the ladder each time without incident. No one accessing the attic via 

the attic ladder advised Nulisch of any problem or issue concerning the ladder prior to Furrh’s fall. 

Furrh’s testimony established he and his co-worker climbed the attic ladder prior to his fall and 

there were no “red flags.” He did not hear any wood cracking and there was no indication the 

second time he climbed the ladder that anything was about to happen. Accordingly, Nulisch’s 

summary judgment evidence established Nulisch received no reports of prior injuries or reports of 

a potential danger posed by the attic ladder prior to Furrh’s fall. Thus, her summary judgment 

evidence established Nulisch did not have actual knowledge of a condition that presented an 

unreasonable risk of harm. See Aguilar, 251 S.W.3d at 513. Furrh did not controvert this evidence. 

 

2

Furrh’s reliance on this Court decision in Welborn Mortg. Corp. v. Knowles to urge there is a duty to discover a defect and that failing to do 

so amounts to the requisite knowledge is misplaced. 851 S.W.2d 328, 331 (Tex. App.—Dallas 1993, writ denied). Welborn was not a premises 

defect case. The issue presented in that case was whether the parties had notice of the judgment entered in the same case and we stated “[t]he law 

charges all parties and their lawyers with notice of all orders and judgments that the court renders in the case. Id. (citing Pentikis v. Tex. Electric 

Serv. Co., 470 S.W.2d 387, 390 (Tex. App.—Fort Worth 1971, writ ref’d n.r.e.)). Accordingly, Knowles is neither instructive nor controlling. 
As to constructive knowledge, the uncontroverted summary judgment evidence established 

the attic ladder functioned as it was intended to up to the moment Furrh fell and was injured. In 

fact, moments before the fall, Furrh climbed the ladder without incident. It was not until Furrh 

climbed the ladder a second time that there was an issue and even then Furrh was able to stand on 

the steps for a few seconds before the ladder system failed. Accordingly, the ostensibly dangerous 

condition existed for mere seconds, minutes at the most, and Nulisch did not have an opportunity 

to discover and remedy the situation. The evidence further established that any inspection of the 

attic ladder seconds before the incident in question, would not have revealed any condition 

requiring a warning. Consequently, Nulisch meet her burden of establishing a lack of constructive 

knowledge of the claimed defect. Furrh did not contradict this evidence. Rather, without citing 

any supporting or controlling authority, he suggests some formal inspection of the attic ladder was 

required and not performed. A premises owner’s duty does not extend that far.

We conclude the summary judgment evidence conclusively negated the knowledge 

element of Furrh’s claim. Consequently, the trial court did not err in granting Nulisch’s motion 

for summary judgment. We overrule Furrh’s sole issue. 

CONCLUSION

We affirm the trial court’s judgment.

181372F.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

TOBY L. FURRH, Appellant

No. 05-18-01372-CV V.

NANCY R. NULISCH, Appellee

On Appeal from the County Court at Law 

No. 1, Dallas County, Texas

Trial Court Cause No. CC-15-03878-A.

Opinion delivered by Justice Schenck. 

Justices Whitehill and Pedersen, III 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellee NANCY R. NULISCH recover her costs of this appeal 

from appellant TOBY L. FURRH.

Judgment entered this 10th day of October, 2019.