1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00447-CV

__________________

ALICIA VALENTINE, Appellant

V.

ASA HOLDINGS REAL ESTATE MANAGEMENT,

ASA HOLDINGS, LP, MOHAMMED ALI AND

SULTANA MUNNAZER, Appellees

__________________________________________________________________

On Appeal from the 58th District Court

Jefferson County, Texas

Trial Cause No. A-199,856

__________________________________________________________________

MEMORANDUM OPINION

Appellant Alicia Valentine (“Appellant” or “Plaintiff”) appeals the trial 

court’s grant of a summary judgment in favor of Appellees ASA Holdings Real 

Estate Management, ASA Holdings, LP, Mohammed Ali, and Sultana Munnazer 

(collectively “Appellees” or “Defendants”). We affirm.
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Background

Valentine alleges that she fell on the walkway into the building located at 155 

Interstate 10 in Beaumont, Texas. She alleged in her Original Petition that she fell 

due to the concrete on the premises being in an “unreasonably dangerous condition,” 

and that the Defendants owned and operated the premises and failed to warn of the 

condition or make it reasonably safe. In her deposition, Valentine testified that she 

had a doctor’s appointment that day and her doctor’s office is in the office building 

at 155 Interstate 10 in Beaumont, Texas. She claims that when she was walking from 

the parking lot into the building, she stepped on a piece of concrete that shifted and 

she fell forward and hurt her knees. According to Valentine, she was an invitee on 

the premises where the incident occurred, and the Defendants owed her a duty to 

exercise ordinary care to inspect the premises, make and keep the premises safe, and 

to warn of dangers. Valentine argued that Defendants knew or should have known 

that the condition of the concrete on the premises created an unreasonable risk of 

harm to invitees; knew or should have known the condition created a risk that 

invitees would be injured; failed to exercise ordinary care to reduce or eliminate the 

risk; and failed to warn invitees, including Valentine. Valentine sought damages for 

past and future medical expenses, physical impairment, physical pain, mental 
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anguish, disfigurement, and loss of earning capacity in an amount over $100,000 but 

less than $200,000. 

Defendants filed an answer asserting a general denial and affirmative 

defenses. Thereafter, Defendants filed a traditional and no-evidence motion for 

summary judgment. Defendants included as an exhibit a transcript of Valentine’s 

deposition testimony. Defendants argued they were entitled to summary judgment 

because:

. . . there is no evidence: (1) that the alleged condition posed an 

unreasonable risk of harm to Plaintiff; (2) that Defendants had actual 

knowledge of the alleged dangerous condition prior to the time Plaintiff 

fell and injured herself; or (3) that Defendants had prior constructive 

knowledge of the alleged dangerous condition—i.e., that such 

condition existed for such a length of time that Defendants, in the 

exercise of ordinary care, should have discovered it. 

In her response Valentine argued that “[a] reasonably careful inspection by 

Defendants would have revealed the unreasonably dangerous condition[.]”

Valentine further argued that “Defendants allowed the piece of concrete to remain 

in disrepair long enough for the concrete to become unattached from the other 

concrete and the underlying ground and/or to rest unevenly on the underlying 

ground.” Valentine argued that “[i]t was foreseeable to Defendants that the piece of 

unstable and detached concrete in the walkway to a professional office building 
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would move when stepped on and that someone might fall due to the piece of 

concrete moving under foot.”

Valentine alleged in her response that “Defendants have failed to conclusively 

show . . . that they lacked pre-incident constructive or actual knowledge of the 

condition and its danger[.]” Valentine also argued that “if Defendants had adequately 

inspected the area, then they would have discovered the unstable condition of the 

piece of concrete.” Valentine argued that the condition was “akin to an unmarked 

trap door[.]” And, she argued that “[f]act questions exist.”

She also attached an affidavit to her response.1 In her affidavit, Valentine 

stated that the incident occurred as she was entering the office building for a doctor’s 

appointment. Valentine alleged she stepped on a piece of concrete that appeared 

level and flush to the ground, but that as she stepped on it, the concrete shifted and 

threw her forward, and she fell and skinned her knees and hands. According to 

Valentine, it was only after she fell that she realized the piece of concrete onto which 

she had stepped was detached and had separated from the adjacent concrete and 

created “an un-stable walking surface.” Valentine did not know whether other people 

had fallen due to the “unstable piece of concrete” and she had not heard of anyone 

1 Also attached to her response were certain billing records from the City of 

Beaumont for emergency medical services and the affidavit of her attorney.
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slipping, tripping, or falling in the area. In her affidavit, Valentine made the 

following allegations related to the condition of the concrete:

• “The piece of concrete on which I stepped was laying flush in the 

ground, as I stated in my deposition; it was not lifted up. The 

walking surface of the piece of concrete on which I stepped appeared 

to be a level walking surface; not lifted up. . . . At the time of the 

incident and before, I could not tell or appreciate that the piece of 

concrete on which I stepped was not attached horizontally to the 

surrounding concrete or that the ground under the piece of concrete 

was not flush to the bottom of the piece of concrete on which I 

stepped. At the time of the incident and before, I could not tell or 

appreciate that the piece of concrete on which I stepped would throw 

my body when I stepped on it like being shot out of a catapult.”

• “Only after I fell I realized that the piece of concrete on which I 

stepped was not attached to the other concrete next to it and that the 

bottom of the piece of concrete on which I stepped was not totally 

attached to or not resting evenly on the underlying ground. After I 

fell, I realized that over time, the adjacent concrete and the ground 

under the piece of concrete had separated from the side and bottom 

of the piece of concrete on which I stepped.”

• “Prior to the incident, I could not tell that the piece of concrete on 

which I stepped was not attached to the other concrete or to the 

ground itself or that it was not resting evenly on the underlying 

ground.”

• “Before the date of the incident, I did not know that the piece of 

concrete was unstable for walking purposes at the location of the 

incident. Prior to and at the time of the incident, the unstable 

condition of the piece of concrete was not easily perceptible to me; 

it just appeared as a level walking surface as I looked ahead of me.”
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• “[A]t the time of the incident, I could not and did not perceive that 

the location of the incident contained a piece of concrete that was 

unattached to the other concrete and to the ground itself.” 

• “At the time of the incident, the piece of concrete appeared to me to 

be a flat, stable walking surface from facts within my present or past 

knowledge, as I was not aware that the concrete was not attached to 

the other concrete or to the ground itself.”

• “Before the incident, the Defendants had not made the unstable 

piece of concrete at the location of the incident reasonably safe for 

stepping and the Defendants and no one else had not warned me of 

the unattached nature and condition of the piece of concrete at the 

location of the incident.”

• “Prior to the incident, I had not slipped, tripped or fallen on the 

subject unattached piece of concrete at the location of the incident 

and I had not seen anyone slip, trip or fall in the area of the incident 

and I had not heard of anyone slipping, tripping or falling in the area 

of the incident.”

In her deposition, Valentine testified that she had been going to see that doctor 

once a month, every month, she had been to his office once in “January, February, 

March, April, May, June, July[,]” and she fell in October. Valentine stated that, at 

the time of her fall, she was wearing “clear slippers[]” with a strap between the big 

toe and second toe and no strap on the heel. In her deposition, Valentine described 

her fall:

I fell for -- I broke my fall forward. It had a piece of concrete that was 

broken that was shifted and when I stepped on it, . . . it threw me and 

that’s how I flew -- that’s how I end up falling forward and skinning 

my knees and -- and my hands. 
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Valentine testified that she fell forward and broke her fall with her hands. According 

to Valentine, the broken piece of concrete was lying flush to the ground.

Defendants filed a reply to Valentine’s response and argued that Valentine 

failed to produce more than a scintilla of evidence on more than one of the four 

elements of her premises liability claim. Defendants argued that there is no evidence: 

(1) that the alleged condition posed an unreasonable risk of harm to Plaintiff; (2) that 

Defendants had actual knowledge of the alleged dangerous condition prior to the 

time Plaintiff fell and injured herself; or (3) that Defendants had prior constructive 

knowledge of the alleged dangerous condition, i.e., that such condition existed for 

such a length of time that Defendants, in the exercise of ordinary care, should have 

discovered it. The Defendants also argued that Valentine failed to produce sufficient 

evidence to raise a genuine issue of material fact regarding whether the condition 

posed an unreasonable risk of harm and “[n]one of the statements made in Plaintiff’s 

Affidavit regarding the alleged dangerous condition (i.e., the loose concrete) prove 

that such condition did in fact pose an unreasonable risk of harm to Plaintiff.”

Defendants argued that Valentine had presented no evidence that the instability of 

the concrete rose to the level of an unreasonable risk of harm and that expert 

testimony was necessary on this point. According to Defendants, Valentine’s 

allegation that the concrete was unstable amounted to mere surmise or suspicion.
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The trial court granted Defendants’ Motion for Traditional and No-Evidence 

Summary Judgment and ordered that all claims brought by Valentine against the 

Defendants should be dismissed. Valentine filed a motion for new trial, which was 

overruled by operation of law. See Tex. R. Civ. P. 329b(c). 

Issues

In three issues, Valentine argues the trial court erred in granting Defendants’

motion for summary judgment because: (1) “Defendants did not meet their burden, 

as a matter of law, regarding unreasonable risk of harm and Defendants’ constructive 

knowledge of the alleged dangerous condition[]”; (2) she raised fact issues regarding 

unreasonable risk of harm and Defendants’ constructive knowledge of the alleged 

dangerous condition; and (3) there are disputed fact issues regarding unreasonable 

risk of harm and Defendants’ constructive knowledge. Appellees argue that 

Valentine failed to present more than a scintilla of evidence that the condition of the 

premises posed an unreasonable risk of harm or that Appellees had constructive 

knowledge of the condition.

Standard of Review

Where, as here, a defendant moves for both traditional and no-evidence 

summary judgment and the trial court grants summary judgment without stating its 

grounds, we first review the trial court’s decision as to the no-evidence motion for 
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summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 

2004); Martinez v. Leeds, 218 S.W.3d 845, 849 (Tex. App.—El Paso 2007, no pet.). 

If the non-movant failed to produce more than a scintilla of evidence raising a 

genuine fact issue of material fact on one or more of the challenged elements of her

claim, we need not address whether traditional summary judgment was proper. See 

Ridgway, 135 S.W.3d at 600; Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662 (Tex. 

App.—Houston [14th Dist.] 2012, pet. denied).

We review summary judgment orders de novo. Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. 

Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under Rule 166a(i) a party may move for 

a no-evidence summary 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. See Tex. R. Civ. P. 166a(i). The trial court may grant a 

no-evidence motion for summary judgment unless the nonmovant brings forth more 

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

challenged by the motion. See id.; Ridgway, 135 S.W.3d at 600. More than a scintilla 

of evidence exists when the evidence rises to a level that would enable reasonable 

and fair-minded people to differ in their conclusions. Ridgway, 135 S.W.3d at 601.
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If “‘the evidence offered to prove a vital fact is so weak as to do no more than 

create a mere surmise or suspicion of its existence, the evidence is no more than a 

scintilla and, in legal effect, is no evidence.’” Id. (quoting Kindred v. Con/Chem, 

Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In determining whether the nonmovant has 

produced more than a scintilla of evidence, we view the evidence in the light most 

favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

Here, Appellees alleged there was no evidence Appellees had actual or 

constructive knowledge of any unreasonably dangerous condition on the premises 

and failed to make the premises safe or failed to warn Valentine of the condition. 

Because Appellees alleged there was no evidence of these essential elements of a 

premises liability claim, the burden shifted to Valentine to identify more than a 

scintilla of evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 

166a(i). 

Premises Liability

In Texas, a landowner owes a duty to use reasonable care to make and keep 

its premises safe for business invitees. Clayton W. Williams, Jr., Inc. v. Olivo, 952 

S.W.2d 523, 527 (Tex. 1997). A landowner is not an insurer of the safety of his 

guests and liability may not be imposed merely because someone is injured. Austin 
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v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also Thoreson v. 

Thompson, 431 S.W.2d 341, 344 (Tex. 1968) (“the fact an accident happens is no 

evidence that there was an unreasonable risk of such an occurrence[]”).

The parties agree that Valentine asserted a premises liability claim. See Austin, 

465 S.W.3d at 216 (“When an injury arises from a premises condition, it is often the 

case that any resulting claim sounds exclusively in premises liability[.]”). The 

elements of a cause of action for a premises liability claim are: (1) the existence of 

a condition of the premises creating an unreasonable risk of harm, (2) the landowner 

knew or should have known of the existence of the condition, (3) the landowner 

failed to use reasonable care to reduce or eliminate the risk by rectifying or warning 

of the condition, and (4) such failure was a proximate cause of plaintiff’s injury. 

Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014); CMH Homes, Inc. v. 

Daenen, 15 S.W.3d 97, 99 (Tex. 2000). 

In premises liability cases, “the duty owed to the plaintiff depends upon the 

status of the plaintiff at the time the incident occurred.” W. Invs., Inc. v. Urena, 162 

S.W.3d 547, 550 (Tex. 2005) (citing M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 

(Tex. 2004); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295-96 (Tex. 1983)).

The parties agree that Valentine was an invitee. A property owner or occupier in a 

premises liability case owes an invitee a duty to use ordinary care to reduce or 
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eliminate an unreasonable risk of harm created by a premises condition which the 

owner or occupier of land knows about or in the exercise of ordinary care should 

know about. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 

(Tex. 1998); Austin, 465 S.W.3d at 202.

A condition is not unreasonably dangerous simply because it is not foolproof. 

Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006). 

Many building materials will, over time, deteriorate and require repair 

or replacement. That does not necessarily mean that the owner or 

occupier has created a dangerous condition or that the owner has actual 

or constructive knowledge of a dangerous condition. For example, we 

know that asphalt roads will develop potholes over time and will require 

repair. That does not mean that asphalt roads constitute an unreasonable 

risk of harm from the day they are constructed. 

Daenen, 15 S.W.3d at 101-02. “A condition is unreasonably dangerous if it presents 

an unreasonable risk of harm.” Pipkin, 383 S.W.3d at 671. The extent to which a 

condition is unreasonably dangerous is ordinarily a fact question, but under some 

facts and circumstances, may be determined as a matter of law. See id. “‘A condition 

presenting an unreasonable risk of harm is one in which there is such a probability 

of a harmful event occurring that a reasonably prudent person would have foreseen 

it or some similar event as likely to happen.’” Reliable Consultants, Inc. v. Jaquez, 

25 S.W.3d 336, 341 (Tex. App.—Austin 2000, pet. denied) (quoting Seideneck v. 

Cal Bayreuther & Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). 
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There is no definitive, objective test that may be applied to determine whether 

a specific condition presents an unreasonable risk of harm. See Seideneck, 451 

S.W.2d at 754. When determining whether the harmful event that resulted from a 

condition was probable and foreseeable, courts often consider, among other things, 

evidence of other falls or injuries attributable to the same condition and evidence of 

some defective condition causing the fall; and, such evidence is probative but not 

conclusive. See id. Courts may consider (1) whether the condition was clearly 

marked, (2) the height of the condition, (3) whether injuries had occurred in the past,

(4) whether other invitees had complained about the condition, (5) whether the 

condition was unusual, (6) whether the construction or placement of the condition 

would serve as a warning that the object presented a prohibited degree of danger, 

(7) whether the invitee had reasonable alternatives other than to go through the area 

where the condition was located, and (8) whether the condition met applicable safety 

standards. See Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 Tex. App. LEXIS 

1217, at **8-10 (Tex. App.—Houston [14th Dist.] Feb. 4, 2014, no pet.) (mem. op.); 

see also Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (holding 

pedestrian ramp was not unreasonably dangerous because it was outlined in yellow 

stripping, which was a common method to indicate elevation change); Dietz v. Hill 

Country Rests., Inc., 398 S.W.3d 761, 767-68 (Tex. App.—San Antonio 2011, no 
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pet.) (holding that summary judgment was proper because there was no evidence of 

unreasonable risk of harm where condition—depressions in a sidewalk—had been 

present for eighteen years with no prior falls or complaints); Farrar v. Sabine Mgmt. 

Corp., 362 S.W.3d 694, 701 (Tex. App.—Houston [1st Dist.] 2011, no pet.) 

(“Evidence of a similar injury or complaint caused by the condition is probative on 

the question of whether the condition posed an unreasonable risk of harm.”).

Analysis

In this case, the only evidence on the condition of the broken concrete was 

Valentine’s own affidavit wherein she described the concrete as “unstable[,]” “not 

attached[,]” and “laying flush in the ground,” and her deposition testimony (with 

photo exhibits) wherein she described the concrete as “shifting back and forth.” In 

her affidavit, Valentine denied knowledge of any prior incidents or falls in the same 

location.

Valentine’s response to the Defendants’ motion for summary judgment failed 

to present more than a scintilla of evidence about the condition to establish that it

was an unreasonably dangerous condition. Valentine produced no evidence about 

how long the condition had existed, whether it had caused prior injuries or falls, 

whether the condition was unusual, whether the condition presented a prohibited 

degree of danger, whether Valentine had reasonable alternatives other than to go 
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through the area where the condition was located, and whether the condition met 

applicable safety standards. See Martin, 2014 Tex. App. LEXIS 1217, at **8-10. In 

Cohen v. Landry’s Inc., for example, plaintiff Cohen alleged she was injured in a 

trip-and-fall accident due to an uneven sidewalk. See 442 S.W.3d 818, 820 (Tex. 

App.—Houston [14th Dist.] 2014, pet. denied). In response to Landry’s no-evidence 

motion for summary judgment, Cohen produced opinion testimony of an expert who 

testified that Landry’s failure to mark the uneven sidewalk or provide lighting 

increased the risk, the uneven sidewalk created a significant trip-and-fall hazard 

because elevation differences are difficult to perceive, and the uneven sidewalk did 

not meet applicable safety standards. Id. at 827-28. With respect to the premises 

liability claim, the court of appeals reversed the trial court’s grant of summary 

judgment and explained that Cohen had presented more than a scintilla of probative 

evidence sufficient to raise a fact issue and overcome summary judgment on her 

premises liability claim. Id. at 828; see also Hawk v. Paragon Inv. Corp., No. 07-

97-0097-CV, 1997 Tex. App. LEXIS 6466, at **5-6 (Tex. App.—Amarillo Dec. 16, 

1997, no writ) (concluding that nonmovant’s uncontroverted expert witness’s 

opinion raised a fact issue that precluded summary judgment on whether the bathtub 

was unreasonably dangerous and whether Paragon should have known of the 

unreasonably dangerous condition). 
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Unlike Cohen and Hawk, Valentine presented no expert testimony about the 

condition, and she relied solely upon her own testimony about her fall and her own 

perception of the condition of the concrete. The fact that Valentine fell does not itself 

constitute evidence of an unreasonably dangerous condition. See Mangham v. YMCA 

of Austin, 408 S.W.3d 923, 928 (Tex. App.—Austin 2013, no pet.); Bostick v. Metro 

Nat’l Corp., No. 14-04-00663-CV, 2005 Tex. App. LEXIS 6584, at *10 (Tex. 

App.—Houston [14th Dist.] Aug. 18, 2005, no pet.) (mem. op.) (concluding that 

claimant failed to produce evidence to defeat no-evidence summary judgment and 

rejecting inference that claimant’s injuries were caused by dangerous condition 

merely because claimant fell). Valentine’s conclusory allegation that the broken 

concrete was unreasonably dangerous is not sufficient to overcome the no-evidence 

summary judgment. See Pipkin, 383 S.W.3d at 670 (“Conclusory affidavits are not 

sufficient to raise fact issues because they are not credible or susceptible to being 

readily controverted.) (citing Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) 

(per curiam)).

On this record, we conclude that Valentine failed to meet her burden in 

response to the no-evidence motion for summary judgment. She failed to provide 

more than a scintilla of evidence showing that the condition of the concrete was an 

unreasonably dangerous condition, which was an essential element of her claim. See 
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Daenen, 15 S.W.3d at 101. Accordingly, the trial court properly granted summary 

judgment dismissing her claim on no-evidence grounds. See Tex. R. Civ. P. 166a(i); 

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002) (quoting Rule 

166a(i) that trial court must grant no-evidence motion unless nonmovant produces 

summary judgment evidence that raises genuine issue of material fact on each 

challenged element). Because Valentine presented no evidence that the condition of 

the concrete was an unreasonably dangerous condition, we need not determine 

whether she presented more than a scintilla of evidence on the other elements of her 

claim. See Tex. R. App. P. 47.1. In addition, because Valentine failed to produce 

more than a scintilla of evidence raising a genuine issue of material fact on the 

challenged elements of her claims, we need not address whether traditional summary 

judgment was proper. See Ridgway, 135 S.W.3d at 600. We also overrule 

Valentine’s first issue—that “Defendants did not meet their burden, as a matter of 

law, regarding unreasonable risk of harm and Defendants’ constructive knowledge 

of the alleged dangerous condition[,]”—because in a no-evidence motion for 

summary judgment, the burden is on the nonmovant-plaintiff to put forward 

evidence on each element of her claim. See id.

We overrule all of Appellant’s issues on appeal and affirm the trial court’s 

judgment.
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AFFIRMED.

_________________________

 LEANNE JOHNSON

Justice

Submitted on February 12, 2020

Opinion Delivered March 12, 2020

Before Kreger, Horton and Johnson, JJ.