Affirmed and Memorandum Opinion filed September 12, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00531-CV

DENISE ZIMMERMAN, Appellant

V.

DR. LESLIE FARIAS, D.D.S., P.A. F/K/A DR. LESLIE FARIAS, D.D.S., P.C. 

AND LESLIE FARIAS, INDIVIDUALLY, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 2010-66570

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

In this workplace personal injury dispute, appellant Denise Zimmerman

challenges the trial court’s grant of summary judgment in favor of appellees Dr. 

Leslie Farias, D.D.S, P.A. f/k/a Dr. Leslie Farias, D.D.S., P.C. (the ―Professional 

Association‖) and Leslie Farias individually. We affirm.
2

Background

Zimmerman broke her hip when she purportedly tripped over computer 

cords1in an operatory room in a dental office and fell while performing her duties 

as a dental hygienist. Neither the Professional Association nor Farias subscribes

to Texas workers’ compensation insurance.

2

 Zimmerman filed suit against the 

Professional Association3and Farias, individually, for negligence based on 

appellees’ failure to provide a safe working environment, failure to make safe a 

dangerous condition, and creation of an unreasonably dangerous condition.

Zimmerman also claimed that Farias was the alter ego of the Professional 

Association.

4

 

Farias filed a traditional and no-evidence summary judgment motion seeking 

judgment on the grounds that Zimmerman did not work for Farias and Farias could 

―not be sued in her individual capacity for actions or inactions of the [Professional 

Association]‖ because the Professional Association was a corporation in good 

standing and no basis existed to pierce the corporate veil to find Farias individually 

liable. Zimmerman responded that an adequate amount of time for discovery had 

not passed before the motion was filed.

5

 The trial court granted the motion, 

entered a take-nothing summary judgment in favor of Farias, and dismissed her 

 

1

Zimmerman alleges Farias installed a digital x-ray system in her dental office, which 

included ―additional wiring and cords that stretched from one area to another in the office, 

connecting the various x-ray and computer equipment.‖

2

See Tex. Labor Code § 406.003.

3

Farias is the sole shareholder of the Professional Association, which is a Texas 

corporation.

4 We take these allegations from Zimmerman’s live petition before the trial court. 

Zimmerman did not include record cites in her appellate brief. See Tex. R. App. P. 38.1(g) 

(requiring statement of facts to contain record references).

5

Zimmerman did not file a motion for continuance requesting time to conduct additional 

discovery relevant to the summary judgment motion.
3

from the case.

The Professional Association also filed a traditional and no-evidence 

summary judgment motion seeking judgment on the grounds that it owed no duty 

to Zimmerman to protect her from a dangerous condition about which she knew

and Zimmerman presented no evidence that (1) her work activities were unusual or 

exposed her to the threat of injury, (2) a dangerous condition was created by a 

negligent act of the Professional Association, (3) the condition posed an 

unreasonable risk of harm, (4) the Professional Association failed to exercise 

reasonable care, or (5) the Professional Association’s alleged lack of care caused 

Zimmerman’s injuries. The trial court granted the motion, dismissed 

Zimmerman’s claims with prejudice, and included in its order the following 

language, ―This Judgment is Final as to all remaining claims and parties and is

appealable.‖

Discussion

In two issues, Zimmerman challenges the trial court’s grant of final 

summary judgment in favor of appellees. We review summary judgments de novo. 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing 

either a no-evidence or a traditional summary judgment motion, all evidence 

favorable to the nonmovant is taken as true, and we draw every reasonable 

inference and resolve all doubts in favor of the nonmovant. Mendoza v. Fiesta 

Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied). When a party seeks summary judgment on both no-evidence and 

traditional grounds, we first review the trial court’s summary judgment under the 

no-evidence standard of Texas Rule of Civil Procedure 166a(i). PAS, Inc. v. 

Engel, 350 S.W.3d 602, 607 (Tex. App.—Houston [14th Dist.] 2011, no pet.). If 

the nonmovant fails to produce more than a scintilla of evidence raising a genuine 
4

fact issue on the challenged elements of his claims, then there is no need to analyze 

whether the movant’s summary judgment proof on the same claim satisfied the 

traditional summary judgment burden of proof under Texas Rule of Civil 

Procedure 166a(c). Id.

In a no-evidence summary judgment motion, a party may move for 

judgment on the ground that there is no evidence of one or more essential elements 

of a claim or defense on which an adverse party would have the burden of proof at 

trial. Tex. R. Civ. P. 166a(i); Mendoza, 276 S.W.3d at 655. A no-evidence 

summary judgment motion should be denied if the nonmovant presents more than 

a scintilla of probative evidence to raise a genuine issue of material fact on the 

challenged element or elements. Forbes Inc. v. Granada Biosciences, Inc., 124 

S.W.3d 167, 172 (Tex. 2003); Mendoza, 276 S.W.3d at 655. More than a scintilla 

of evidence exists when reasonable and fair-minded individuals could differ in 

their conclusions. Forbes, 124 S.W.3d at 172; Mendoza, 276 S.W.3d at 655. Less 

than a scintilla of probative evidence exists if the evidence creates no more than a 

mere surmise or suspicion of fact regarding a challenged element. Forbes, 124 

S.W.3d at 172; Mendoza, 276 S.W.3d at 655.

A traditional summary judgment is properly granted only when the movant 

establishes that there are no genuine issues of material fact and it is entitled to 

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). To determine if the 

nonmovant raises a fact issue, we review the evidence in the light most favorable 

to the nonmovant, crediting favorable evidence if reasonable jurors could do so and 

disregarding contrary evidence unless reasonable jurors could not. City of Keller v. 

Wilson, 168 S.W.3d 802, 827 (Tex. 2005); PAS, 350 S.W.3d at 607-08. A 

defendant who conclusively negates a single essential element of a cause of action 
5

or conclusively establishes an affirmative defense is entitled to summary judgment 

on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); 

PAS, 350 S.W.3d at 608. 

I. Summary Judgment in Favor of Farias Not Premature and No 

Evidence of Sham to Perpetrate Fraud

In her first issue, Zimmerman argues the trial court erred by granting 

summary judgment in favor of Farias individually, complaining that (1) the motion 

for summary judgment was premature; (2) Zimmerman presented ―some evidence 

that [the Professional Association] is a sham‖; and (3) the evidence in support of 

the motion was inadequate to conclusively establish that the Professional 

Association ―is not a sham.‖ We conclude that Zimmerman did not show the 

summary judgment motion was premature and presented no evidence that the 

Professional Association was a sham.

No showing that the motion for summary judgment was premature. 

Zimmerman argues that an adequate amount of time for discovery had not passed 

before Farias moved for summary judgment, as required under Texas Rule of Civil 

Procedure 166a(i). We review this issue for an abuse of discretion by the trial 

court. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th 

Dist.] 2002, pet. denied). Although Rule 166a(i) allows a party to file a noevidence motion for summary judgment ―[a]fter adequate time for discovery,‖ it

does not require the movant to demonstrate when an adequate time for discovery 

has passed. Instead, a party seeking more time to conduct discovery to oppose a 

summary judgment motion must file an affidavit describing the evidence sought, 

explaining its materiality, and showing the due diligence used to obtain the 

evidence. Tex. R. Civ. P. 166a(g), 251, 252; see also Carter, 93 S.W.3d at 310. 

The affidavit must show why the continuance is necessary—conclusory allegations 
6

are not sufficient. Carter, 93 S.W.3d at 310. 

The underlying case was filed in October 2010, and the summary judgment 

in favor of Farias was granted in January 2012. Zimmerman included two 

paragraphs in her response to the motion complaining that (1) appellees ―objected 

to [her] discovery and . . . refused to produce relevant documents,‖ (2) the 

depositions of Zimmerman and Farias were taken a month after the motion was 

filed, and (3) other discovery was needed. The response was accompanied by a 

declaration from Zimmerman’s counsel that the facts therein were ―true and correct 

to the best of [his] knowledge.‖ Even if we were to construe the response as a 

request for continuance to oppose the summary judgment motion, the response 

gave no basis for the trial court to assess the materiality of the requested discovery 

or the length of continuance needed. See id.

Zimmerman argues, however, that summary judgment was improper 

because an adequate time for discovery had not passed as a matter of law in that

the discovery period did not end until two months after the motion was granted. 

An adequate time for discovery is not contingent on when the discovery period 

ends; instead, it depends upon the nature of the claims, the evidence needed to 

controvert the motion, the length of time the case has been on file, and any 

deadlines set by the trial court. Id. Here, Farias filed her motion one year after 

Zimmerman’s petition was filed. Generally, a trial court may presume a plaintiff 

has investigated her own case prior to filing. Id. The motion was filed five 

months—and granted two months—before the end of the seventeen-month 

discovery period. See id. Zimmerman’s response to the motion did not indicate 

why the months past were insufficient for adequate discovery or what specific 

discovery needed to be completed. See id. We cannot say the trial court abused its 

discretion in granting the summary judgment motion before the end of the 
7

discovery period. See id.

No evidence supported Zimmerman’s sham to perpetrate a fraud claim

against Farias. Zimmerman sought to pierce the corporate veil to hold Farias 

personally liable based on the theory that the Professional Association ―is a 

sham.‖6 Courts will ―disregard the corporate fiction, even though corporate 

formalities have been observed and corporate and individual property have been 

kept separately, when the corporate form has been used as part of a basically unfair 

device to achieve an inequitable result.‖ Castleberry v. Branscum, 721 S.W.2d 

270, 271 (Tex. 1986); Phillips v. B.R. Brick & Masonry, Inc., 01-09-00311-CV, 

2010 WL 3564820, at *6 (Tex. App.—Houston [1st Dist.] Sept. 10, 2010, no pet.)

(mem. op.). This prevents the ―use of the corporate entity as a cloak for fraud . . .

or to work an injustice.‖ Phillips, 2010 WL 3564820, at *6; Love v. State, 972 

S.W.2d 114, 119 (Tex. App.—Austin 1998, pet. denied). Texas takes a ―flexible 

fact-specific approach‖ in applying this exceptional equitable remedy. 

Castleberry, 721 S.W.2d at 273; Phillips, 2010 WL 3564820, at *6. However, 

courts may not disregard the corporate form based on mere unity of interest, 

ownership and control. Watkins v. Basurto, 14-10-00299-CV, 2011 WL 1414135, 

at *8 (Tex. App.—Houston [14th Dist.] Apr. 14, 2011, no pet.) (mem. op.) (citing 

Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 374 (Tex. 1984)). Moreover, courts 

are generally ―less reluctant to disregard the corporate entity in tort cases than in 

breach of contract cases.‖ Lucas, 696 S.W.2d at 375; Phillips, 2010 WL 3564820, 

at *6.

To prove that there has been a sham to perpetrate a fraud, tort claimants 

 

6 Based on this allegation, we presume Zimmerman’s alter ego theory is based on a sham 

to perpetrate a fraud. See Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986) (listing 

types of alter ego claims); see also AmSav Group, Inc. v. Am. Sav. & Loan Ass’n of Brazoria 

County, 796 S.W.2d 482, 489 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (prescribing 

requirements for tort claimants to establish sham to perpetrate fraud claim).
8

must show constructive fraud. Castleberry, 721 S.W.2d at 273; AmSav Group, 

Inc. v. Am. Sav. & Loan Ass’n of Brazoria County, 796 S.W.2d 482, 489 (Tex. 

App.—Houston [14th Dist.] 1990, writ denied). Constructive fraud is the breach 

of some legal or equitable duty which, irrespective of moral guilt, the law declares 

fraudulent because of its tendency to deceive others, to violate confidence, or to 

injure public interests. AmSav Group, Inc., 796 S.W.2d at 489. Intent to defraud is 

not a necessary element. Lucas, 696 S.W.2d at 375. Courts have pierced the 

corporate veil when the pattern of the sham is such that shareholders of a 

corporation with unwanted obligations siphon off revenues and sell assets or do 

other acts to hinder the company’s ability to pay its debts, such as start up a new 

business with the same shareholders. Love, 972 S.W.2d at 120; see also Klein v. 

Sporting Goods, Inc., 772 S.W.2d 173, 176–77 (Tex. App.—Houston [14th Dist.] 

1989, writ denied) (holding sole shareholder liable for company debts when he 

incorporated new business to continue business of foreclosed company: foreclosure 

sale was merely attempt to avoid creditors).

Zimmerman alleges she presented more than a scintilla of probative 

evidence to show that Farias used the Professional Association as a sham to 

perpetrate a fraud because (1) appellees’ counsel disclosed to an unknown person 

that Farias ―would just simply shut down her current operation and start a new one 

the next day . . . if [Zimmerman] gets a judgment‖; (2) Farias did not ―deny her 

counsel’s statement‖; and (3) Farias provides no benefits to her employees and is 

the sole shareholder of the Professional Association.7 Even assuming this were 

 

7

Zimmerman did not submit any evidence along with her response to the motion. 

However, her response was supported by her counsel’s declaration that the facts therein were 

―true and correct to the best of [his] knowledge.‖ Farias only objected to the response on the 

bases that it contained ―hearsay, innuendo and argument.‖ However, Farias did not secure a 

ruling on these objections, and they are waived. See Washington DC Party Shuttle, LLC v. 

IGuide Tours, 14-12-00303-CV, 2013 WL 3226768, at *8, 10 (Tex. App.—Houston [14th Dist.] 

June 27, 2013, no. pet. h.) (noting an objection to a defect in the form of an affidavit is preserved 
9

proper summary judgment evidence, it would not be more than a scintilla of 

evidence of constructive fraud.

Pure expression of opinion will not support an action for fraud. Italian 

Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337-38 

(Tex. 2011); Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995). 

Whether a statement is an actionable statement of ―fact‖ or merely one of 

―opinion‖ often depends on the circumstances in which a statement is made. 

Italian Cowboy Partners, 341 S.W.3d at 338; Faircloth, 898 S.W.2d at 276.

Among the relevant circumstances are the statement’s specificity, the speaker’s 

knowledge, the comparative levels of the speaker’s and the hearer’s knowledge, 

and whether the statement relates to the present or the future. Faircloth, 898 

S.W.2d at 276; see also Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983).

The relevant statement in this case—that Farias would ―shut down‖ the 

Professional Association and start a new company if Zimmerman got a judgment 

against the Professional Association—purportedly was made by a third party 

(Farias’ attorney) to an unknown person based on the attorney’s opinion about 

what Farias might do in the future. We conclude, under these facts, that it is a 

 

only when the litigant objects and obtains a ruling from the trial court); see also Chapman 

Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 435-36 (Tex. App.—Houston [14th 

Dist.] 2000, pet. denied) (noting failure to obtain ruling on objection to defect of form in 

affidavit waives objection and holding hearsay objections were waived). Farias makes no 

additional objections to the declaration on appeal.

Zimmerman also argues ―Farias utilizes the corporate structure solely [for] her own 

benefit‖ and the sole purpose of the Professional Association is to shield Farias from personal 

liability. These statements are legal conclusions, not evidence, because they are not supported 

by underlying facts. See Hall v. Bean, 14-12-00323-CV, 2013 WL 3086820, at *4 (Tex. App.—

Houston [14th Dist.] June 20, 2013, no. pet. h.). Thus, they are insufficient to establish the 

existence of a fact in support of a summary judgment motion. See id. An objection is not 

required to preserve error on a challenge to conclusory statements because they constitute no 

evidence. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 

(Tex. 2004).
10

statement of opinion and not evidence of constructive fraud. Zimmerman also 

argues, without citing the record, that she presented evidence that Farias did not 

deny the statement. Zimmerman’s response to the motion stated, ―It was 

discovered . . . in Dr. Farias’ deposition that she does not deny her counsel’s 

statement.‖8 The response is unclear as to whether Farias failed to deny her 

counsel made the statement or failed to deny the truth of the statement. It is also 

unclear what questions, if any, Farias was asked during her deposition about her 

counsel’s statement. It thus is unclear how Farias’ failure to deny her counsel’s 

statement could support Zimmerman’s constructive fraud claim, and we conclude 

the failure to deny the statement is not more than a scintilla of evidence in support 

of Zimmerman’s claim. Furthermore, Zimmerman has not shown how the 

Professional Association’s failure to provide benefits to its employees supports her 

claim that the Professional Association is a sham, and by itself, the fact that Farias 

is the Professional Association’s sole shareholder is not evidence of a sham to 

perpetrate a fraud. See Lucas, 696 S.W.2d at 374 (noting courts will not pierce veil 

between parent and subsidiary based on ―mere unity of financial interest, 

ownership and control‖).

We conclude that Zimmerman did not present more than a scintilla of 

evidence to support her sham to perpetrate a fraud claim against Farias. 

Accordingly, the trial court did not err in granting summary judgment in favor of 

Farias regarding this claim.

We overrule Zimmerman’s first issue.

 

8

Zimmerman did not cite Farias’ deposition or incorporate the relevant deposition 

testimony into the response.
11

II. No Error in Granting Summary Judgment in Favor of the

Professional Association

In her second issue, Zimmerman challenges the trial court’s grant of the 

Professional Association’s traditional and no-evidence summary judgment motion

on her premises liability claim against the Professional Association. We conclude 

that Zimmerman did not present more than a scintilla of probative evidence in 

support of each challenged element of her premises liability claim.

In a premises liability case, the duty owed to the plaintiff depends on the 

plaintiff’s status at the time of the incident. M.O. Dental Lab v. Rape, 139 S.W.3d 

671, 675 (Tex. 2004). Here, the parties agree that Zimmerman, as the Professional 

Association’s employee, was an invitee when the incident in question occurred. 

See, e.g., Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Hall v. Sonic 

Drive-In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.—Houston [1st Dist.] 

2005, pet. denied). Thus, the Professional Association owed Zimmerman a duty 

―to exercise reasonable care to protect against danger from a condition on the land 

that creates an unreasonable risk of harm of which the owner or occupier knew or 

by the exercise of reasonable care would discover.‖ Scott & White Mem’l Hosp. v. 

Fair, 310 S.W.3d 411, 412 (Tex. 2010); Norman v. Henkel, 14-12-00995-CV, 

2013 WL 3895213, at *2 (Tex. App.—Houston [14th Dist.] July 30, 2013, no. pet. 

h.). 

The elements of an invitee’s premises liability claim in which it is alleged 

that a dangerous condition is known to or discoverable by a possessor of land are 

well established. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 

2002). To prevail on such a claim, a plaintiff must prove that (1) the possessor had 

actual or constructive knowledge of some condition on the premises, (2) the 

condition posed an unreasonable risk of harm, (3) the possessor failed to exercise 
12

reasonable care to reduce or eliminate the risk, and (4) the possessor’s failure to 

use such care proximately caused the plaintiff’s injuries. LMB, Ltd. v. Moreno, 

201 S.W.3d 686, 688 (Tex. 2006); Motel 6 G.P., 929 S.W.2d at 3; Samco Props., 

Inc. v. Cheatham, 977 S.W.2d 469, 474-75 (Tex. App.—Houston [14th Dist.] 

1998, pet. denied).

When faced with a no-evidence motion for summary judgment, a nonmovant 

cannot avoid judgment by simply filing voluminous evidence and stating generally 

that a genuine fact issue has been raised. Kimbrell v. Mem’l Hermann Hosp. Sys., 

14-12-00108-CV, 2013 WL 3945930, at *6 (Tex. App.—Houston [14th Dist.] 

Aug. 1, 2013, no. pet. h.); see also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 

323, 331 (Tex. App.—Houston [14th Dist.] 2005, no pet.). A contrary holding 

would place an unreasonable burden on the trial court and would violate the 

requirement of Rule 166a(i) that the response must point out evidence that raises a 

genuine issue of fact as to each challenged element. Kimbrell, 2013 WL 3945930, 

at *6 (affirming no-evidence summary judgment when nonmovant referred 

generally to deposition testimony but did not include particular statements in the 

depositions or pages of the deposition transcripts); Crawford, 171 S.W.3d at 331 

(affirming a no-evidence summary judgment when the nonmovant responded with 

a general statement that fact issues existed and referenced 650 pages of evidence, 

although the nonmovant made more specific arguments on appeal).

The Professional Association moved for summary judgment on the ground, 

among others, that Zimmerman failed to present evidence that a condition on the 

premises posed an unreasonable risk of harm.

9

 A condition does not pose an 

 

9

The other grounds on which the Professional Association moved for no-evidence 

summary judgment are that Zimmerman failed to present evidence that (1) the Professional

Association created a dangerous condition, (2) the Professional Association failed to exercise 

reasonable care, or (3) the Professional Association’s alleged lack of care proximately caused 
13

unreasonable risk of harm simply because it is not foolproof. Brinson Ford, Inc. v. 

Alger, 228 S.W.3d 161, 163 (Tex. 2007). A condition poses an unreasonable risk 

of harm when there is a ―sufficient probability of a harmful event occurring that a 

reasonably prudent person would have foreseen it or some similar event as likely to 

happen.” Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); Pipkin v. 

Kroger Tex., L.P., 383 S.W.3d 655, 671 (Tex. App.—Houston [14th Dist.] 2012, 

pet. denied). Whether a particular condition poses an unreasonable risk of harm is 

generally fact specific, but there is no definitive test for determining this issue. 

Pipkin, 383 S.W.3d at 671.10 However, the mere happening of an accident is not, 

of itself, evidence that there was an unreasonable risk of such an occurrence. 

Smylie v. First Interstate Bank, Tex., No. 14-99-00713-CV, 2000 WL 1707308, at 

*2 (Tex. App.—Houston [14th Dist.] Nov. 16, 2000, no pet.) (not designated for 

publication).

Zimmerman filed a response that attached three deposition transcripts and 

medical records as evidence. The deposition transcripts included 307 pages, and 

the medical records included 41 pages. However, with regard to many factual 

statements in her response, she did not include references to any particular 

statements in the depositions or cite pages of the deposition transcripts or the 

medical records. Accordingly, we consider as evidence only the factual statements 

in the response that reference specific statements in the depositions, pages of the 

deposition transcripts, or pages of the medical records. See Kimbrell, 2013 WL 

3945930, at *6.

 

Zimmerman’s injuries.

10 Although this question is ordinarily one of fact, it may be decided as a matter of law. 

Id.; see also Brinson Ford, Inc., 228 S.W.3d at 163 (holding as a matter of law that ramp at 

entrance of car dealership did not pose an unreasonable risk of harm when, among other things, 

no customer had been previously injured by it and the dealership had not received prior 

complaints about its safety).
14

Zimmerman presented deposition testimony from Marjorie F. Merritt,

another employee of the Professional Association, which included the following

statements of fact referenced in Zimmerman’s response:

The operatory room in which Zimmerman worked had an ultrasonic 

scaler, the Cavitron, with wires connected to its pedal.11

Merritt was concerned that the Cavitron wires were unsafe and 

informed Farias of the problem ―more than six months‖ before 

Zimmerman was injured.

Farias subsequently provided a cart to ―be able to move [the Cavitron]

around the wires that were in [the] way.‖

The cart, which Farias provided before Zimmerman was injured, 

―t[ook] care of the concerns [Merritt] had about the wires.‖

A new digital x-ray machine was installed approximately four months 

before Zimmerman was injured, which uses a sensor that is put into 

the patient’s mouth and has a wire that runs from the sensor to a 

computer on the counter. Some wires also connected the computer 

monitor to the hard drive.

Merritt knew there were ―other hoses and wires‖ in the operatory 

room when Zimmerman was injured than the wires associated with

the Cavitron.

Farias made changes to the operatory room where Zimmerman was 

injured after the injury occurred.

This evidence does not comprise more than a scintilla of evidence that a 

condition on the premises posed an unreasonable risk of harm. The only evidence 

of a potentially dangerous condition was based on Merritt’s testimony that she had 

been concerned the Cavitron wires were unsafe. However, Farias provided a cart

for the Cavitron wires well before Zimmerman’s accident, which Merritt testified 

 

11 Merritt testified the scaler removes tartar from patient’s teeth using ultrasound, and it is 

operated with a pedal.
15

remediated the allegedly dangerous condition. Moreover, the changes Farias made 

to the operatory room after Zimmerman was injured do not, standing alone, 

constitute evidence that any condition in the operatory room previously had posed 

an unreasonable risk of harm. See Smylie, 2000 WL 1707308, at *2 (noting 

evidence of unreasonable risk of harm must include attributes of the condition 

making it dangerous).

As to the other evidence presented, although the x-ray machine had wires 

and Merritt recognized that there were ―other hoses and wires‖ in the operatory 

room than the wires associated with the Cavitron, Zimmerman presents no 

evidence of any details regarding how a condition of the room may have been 

unsafe. See id. That she allegedly tripped and fell—evidence of which is not even 

presented in Zimmerman’s response to the motion for summary judgment—is not 

evidence describing the attributes of a condition that rendered it an unreasonable 

risk of harm. See id. For example, there is no evidence indicating where the wires 

and hoses were when Zimmerman was injured, whether they obstructed the area 

where Zimmerman performed her duties, or whether their placement was in 

compliance with any applicable standards for dental equipment. See id. Similarly, 

although Merritt complained about the safety of the Cavitron wires, the evidence 

showed Farias addressed that problem, and Zimmerman did not present any 

evidence of any other, or more specific, complaints regarding the safety of the 

premises. See Farrar, 362 S.W.3d at 701.

Even when viewed in a light most favorable to Zimmerman, we conclude

that Zimmerman has not produced any evidence to support the element that the 

condition complained of posed an unreasonable risk of harm. See Smylie, 2000 

WL 1707308, at *3. She presented no evidence that the condition presented a 

probability of harm that a reasonable person would have foreseen. See id. at *2-3 
16

(holding testimony that plaintiff slipped on rocks was some evidence of a condition 

on the premises but not of an unreasonable risk of harm when plaintiff did not

produce evidence describing the attributes of the condition that rendered it an 

unreasonable risk of harm); see also Brinson Ford, 228 S.W.3d at 163 (holding 

ramp into car dealership did not pose unreasonable risk of harm when it met safety 

standards, was outlined in yellow color, was lower to ground than a step, no other 

customers had been injured, and dealership had not received prior complaints 

about safety); cf. Cnty. of Cameron, 80 S.W.3d at 556 (concluding fact question 

existed regarding whether it was foreseeable that a change of lighting at night on 

causeway could impair motorist’s ability to avoid obstacles). 

We conclude that Zimmerman did not present more than a scintilla of 

evidence to support each challenged element of her premises liability claim against 

the Professional Association. Accordingly, the trial court did not err in granting 

summary judgment in favor of the Professional Association. Because Zimmerman 

did not satisfy the no-evidence burden of proof as to this claim, we need not 

address whether Farias’ evidence satisfied the traditional summary-judgment 

burden of proof. See PAS, 350 S.W.3d at 607.

We overrule Zimmerman’s second issue.

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Boyce, Jamison, and Busby.