In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-21-00201-CV

___________________________

On Appeal from County Court at Law

Hood County, Texas

Trial Court No. C08035

Before Sudderth, C.J.; Wallach and Walker, JJ.

Memorandum Opinion by Justice Wallach

TONYA GAYLE HARKINS, Appellant

V.

WAL-MART STORES TEXAS, LLC, D/B/A WAL-MART STORES TEXAS 2007,

LLC, WAL-MART SUPER CENTER, AND WAL-MART, Appellees
2

MEMORANDUM OPINION

This is a personal injury case arising from Appellant Tonya Gayle Harkins’ trip 

and fall at a Wal-Mart store in Granbury, Texas. Harkins sought to impose liability on 

Appellees Wal-Mart Stores Texas, LLC, d/b/a Wal-Mart Stores Texas 2007, LLC, 

Wal-Mart Super Center, and Wal-Mart (collectively Wal-Mart) based on premises

liability and negligent activity theories. Wal-Mart filed a hybrid motion for summary 

judgment in which it sought a traditional summary judgment on the premises liability 

claim because it did not have notice of any such condition and the alleged

unreasonably dangerous condition was not concealed, thereby negating any duty to 

her. It argued for a no-evidence summary judgment on that claim on the grounds that 

there was no evidence of (1) an unreasonable risk of harm; (2) knowledge of an 

unreasonably dangerous condition; (3) breach of duty; or (4) proximate cause. 

Further, Wal-Mart contended that there was no evidence that Harkins’ fall was caused 

by a contemporaneous negligent activity, requiring dismissal of Harkins’ negligent 

activity claim.

The trial court granted both motions without specifying the bases of its ruling

and Harkins now appeals that order. Because Harkins’ own arguments establish this is 

a premises defect case, we will affirm that portion of the judgment granting WalMart’s no-evidence motion for summary judgment regarding negligent activity. 

However, we will reverse the remainder of the summary judgment regarding premises 
3

liability and remand the case to the trial court for further proceedings because the 

evidence established the existence of fact issues.

I. Background

Harkins alleged that on December 6, 2018, she tripped and fell on a floor mat 

at the exit of a Wal-Mart store. Harkins filed this personal injury case against WalMart on July 30, 2019 asserting negligent activity and premises liability theories against 

Wal-Mart. The negligence allegations in the petition were that Wal-Mart:

(a) failed to take proper steps to ensure that the area was safe;

(b) provided or allowed to exist an unreasonably dangerous path to walk on the 

occasion in question;

(c) failed to properly inspect the area in question, when it knew or should have 

known of the unreasonably dangerous condition;

(d) failed to provide a safe common area at the premises in question;

(e) failed to adequately warn the plaintiff that the dangerous condition existed;

(f) failed to block off or guard the area so as to prevent its invitees from using 

this area;

(g) failed to timely correct the dangerous condition once it was discovered;

(h) failed to exercise reasonable care, diligence, and prudence so as to protect 

the safety of persons on the premises.

Wal-Mart answered with a general denial and multiple affirmative defenses,

including that the alleged condition was open and obvious and not concealed. WalMart then filed a traditional motion for summary judgment contending that it did not 

have notice of the alleged unreasonably dangerous condition and the alleged 
4

unreasonably dangerous condition was not concealed, thereby negating any duty to 

Harkins. This traditional motion was combined with a no-evidence motion for 

summary judgment in which Wal-Mart contended that there was no evidence: (1) of 

an unreasonable risk of harm; (2) that it had notice of an unreasonably dangerous 

condition; (3) of a breach of duty; and (4) of proximate cause of injury (specifically, 

there was “not sufficient evidence that [Harkins’] fall was proximately caused by any 

action or inaction on the part of [Wal-Mart]”). Wal-Mart did not contend that there 

was no evidence of injury. Further, Wal-Mart argued that there was no evidence that 

Harkins’ fall was caused by a contemporaneous activity of any of its employees, 

requiring dismissal of Harkins’ negligence claim.

In support of its traditional motion Wal-Mart relied upon Harkins’ admission 

that the floor mat was open and obvious. Harkins’ response was not that the floor 

mat itself was unreasonably dangerous but that the floor mat was unreasonably 

dangerous because it was prone to rolling up when in normal use, thereby causing an 

unreasonable risk of tripping and falling, and that risk was concealed and Wal-Mart 

did not exercise reasonable care to fix it, to warn its patrons, or to protect them 

against it.

Harkins’ evidence in response to Wal-Mart’s motions came from deposition

excerpts from Lori Bernard, Wal-Mart’s customer service manager, and Angela 

Brown, Wal-Mart’s Assistant Manager; a surveillance video recording of the event and 

screen captures therefrom; Wal-Mart’s customer incident report and customer 
5

incident video request form related to Harkins’ incident; and a print out of Wal-Mart’s 

“Floor Mat Program.”

We will begin with the security video. Unlike many cases where events can only 

be described through the senses and memories of human witnesses, here we have an

actual video recording of the events beginning an hour before the fall and ending an

hour after it. The video reveals that the area in question is the entrance/exit of the 

Wal-Mart store. In the foreground is the inside of the store, and in the background is

the outside of the store. Also visible in the foreground is a blue equipment station 

with a water bucket and mopping equipment and a wet-floor sign. In the background,

several feet away, are automatic sliding doors on the left and right, each of which has 

glass appearing doors with horizontal metal bars in them. Each set of doors is split in 

the middle and open and close by each door moving to and from the middle of the 

door opening. From 5:25 p.m. to 6:25 p.m., the video shows a high volume of foot 

traffic with many people entering and leaving through both sets of doors, some 

pushing grocery carts, others not. At 5:25 p.m., the right-door side (the side in 

question) has a dark floor mat lying just to the exterior side of the automatic doors

while the left side has a similar floor mat in the space between the automatic doors.

Between 5:25 p.m. and 6:25 p.m., the automatic doors on the left side never close, 

remaining continuously in the open position. The door mat on the left side moves 

very little from its originally viewed position between the doors.
6

Wal-Mart’s greeter, Ronnie, repositioned the mat on the right side at 5:30 p.m.

from the exterior side of the automatic doors to a position where the front few inches 

of the mat were directly between the automatic doors. He did this by simply using his 

foot to glide the mat across the floor. Between 5:30 p.m. and 5:52 p.m., the pedestrian 

traffic had slid the right-side mat back to the exterior side of the automatic doors. At 

5:52 p.m., Ronnie again slides the mat back between the automatic doors.

Between 5:52 p.m. and 6:12 p.m., the right front portion of the mat rolled up 

11 times as the automatic doors closed and rolled back flat each time the doors 

reopened. The rolled-up portion of the front of the mat extended from the right front 

corner to approximately a quarter of the way across the front of the mat. While the 

mat was rolling up and back out, three patrons used a foot to help the mat unroll as 

the doors opened. No one else appeared to have difficulty with the mat between 

5:25 p.m. and 6:25 p.m. but no one appeared to have contacted the front of the mat 

with the toe of a shoe. Between 6:12 p.m. and 6:25 p.m., the time of the fall, the mat 

stopped rolling up despite the doors continuing to open and close. Between 5:30 p.m.

and 6:30 p.m., Ronnie is seen in the video working in the area frequently but also out

of the camera’s view for periods of time. When in view, Ronnie was greeting 

customers, arranging baskets, moving motorized carts, cleaning, and doing other 

miscellaneous tasks. However, he did not appear to be paying much direct attention 

to the floor mat and only moved it twice as described.
7

At 6:25 p.m., a man approaches the right-side doors, which are closed. They 

open as he approaches, and he exits without incident. Another person then 

approaches, pushing a basket, and exits without difficulty. Harkins then approaches.

She is walking at a normal speed, but she does not pick her feet up very high as she 

walks, which one could reasonably describe as “foot dragging.” The mat appears to be 

flat. Her right foot contacts the right front of the mat first. No mat movement is 

visible. As she moves her left foot forward, the toe of her shoe contacts the area of 

the mat near where the mat had stopped its rolling when the door had been rolling it 

up. She did not kick the mat or appear to do anything other than to move her foot 

forward. When her left shoe’s toe contacted the mat, the mat curled back from the 

point where her toe contacted the mat and rolled up in a diagonal direction such that 

about one quarter of the left front mat curled up, resulting in Harkins’ trip and fall.

The video shows that Harkins took a significant fall. She stayed on the floor for a 

period of time and was immediately assisted by other patrons. As Harkins was laying 

on the mat after her fall, Ronnie, who is just a few feet from her, sees her about 

30 seconds after her fall, and as he goes to check on her, he rolls the rug back flat

using his foot. At 6:30 p.m., an unidentified male walks to the front of the mat and 

moves his foot into the front of the mat as if he was checking to see how easily the 

mat would roll up. With what appeared to be little effort, he rolled up the front of the

mat with his foot.
8

From the deposition testimony of the Wal-Mart managers, the following 

matters relevant to our review are gleaned:

a. Lori Bernard:

1) the weather stripping on the bottom of the automatic doors

sometimes catches the mats and causes them to roll up when the 

doors close if the mat is between the doors;

2) mats that roll up are a tripping hazard if they do not unroll when 

the doors close;

3) viewing Harkins’ fall on the video, Bernard agreed that Harkins 

caught the toe of her shoe on the rubber edging of the mat, which 

caused the mat to flip up as she moved forward, and that the mat 

did not flip up of its own volition;

4) it was Ronnie the door greeter’s job to see that the mats were

properly placed;

5) it was Ronnie’s job to keep the mat from being between the doors 

so the mat would not get rolled up;

b. Angela Brown:

1) it was Ronnie’s job to “constantly” watch the mats and keep the 

mats in proper position;

2) it was known to Brown that people would drag their feet as they 

walked and “kick up” the corners of the mat.

1

1

Harkins argued in the trial court, and does so here, that Brown testified on 

page 41 of her deposition that a curled mat should be replaced. However, there was 

no page 41 from Brown’s deposition attached to the summary judgment response and 

there is none in the clerk’s record. Thus, we cannot consider it in our review. Mathis v. 

Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2007, no 

pet.).
9

II. Standards of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). No-evidence and traditional grounds for summary 

judgment may be combined in a single hybrid motion. Binur v. Jacobo, 135 S.W.3d 646, 

650–51 (Tex. 2004); Coleman v. Prospere, 510 S.W.3d 516, 518–19 (Tex. App.—Dallas 

2014, no pet.). When a trial court grants both a no-evidence and a traditional motion 

for summary judgment, we first consider the no-evidence motion. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground that 

there is no evidence to support an essential element of the nonmovant’s claim or 

defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for 

which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 

2009); Duncan v. First Tex. Homes, 464 S.W.3d 8, 13 (Tex. App.—Fort Worth 2015, pet.

denied). The trial court must grant the motion unless the nonmovant produces 

summary judgment evidence that raises a genuine issue of material fact. See Tex. R. 

Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); Duncan,

464 S.W.3d at 13. When reviewing a no-evidence summary judgment, we examine the 

entire record in the light most favorable to the nonmovant, indulging every reasonable 

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 

291, 292 (Tex. 2006); Duncan, 464 S.W.3d at 13. We review a no-evidence summary 
10

judgment for evidence that would enable reasonable and fair-minded jurors to differ 

in their conclusions. Hamilton, 249 S.W.3d at 426; City of Keller v. Wilson, 168 S.W.3d

802, 822 (Tex. 2005). Both direct and circumstantial evidence may be used to establish 

any material fact. Ford Motor Co., 135 S.W.3d at 601. We credit evidence favorable to 

the nonmovant if reasonable jurors could, and we disregard evidence contrary to the 

nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310; Mack 

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the nonmovant brings 

forward more than a scintilla of probative evidence that raises a genuine issue of

material fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell, 

288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003); Duncan, 464 S.W.3d at 14.

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. Ford 

Motor Co., 135 S.W.3d at 601. Evidence does not exceed a scintilla if it is so weak as to 

do no more than to create a mere surmise or suspicion that the fact exists. Id. A 

plaintiff is not required to marshal her proof but only is required to present evidence 

that raises a genuine fact issue on the challenged elements. Drew v. Harrison Cnty. Hosp. 

Ass’n, 20 S.W.3d 244, 247 (Tex. App.—Texarkana 2000, no pet.) (patient who was

injured when her arm was pinched in an elevator closing raised a fact issue on 

unreasonable danger and notice through her affidavit testimony that two women 

wearing hospital name badges told her this had happened before and deposition
11

testimony of the hospital’s engineer that an incident like the patient’s would pose an

unreasonable risk of harm to the public.).

In reviewing a traditional summary judgment, we consider the evidence 

presented in the light most favorable to the nonmovant, crediting evidence favorable 

to the nonmovant if reasonable jurors could, and disregarding evidence contrary to 

the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Duncan, 464 S.W.3d at 13.

We indulge every reasonable inference and resolve any doubts in the nonmovant’s 

favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Duncan, 464 S.W.3d at 

13. A defendant who conclusively negates at least one essential element of a cause of 

action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 

315 S.W.3d 494, 508 (Tex. 2010); Duncan, 464 S.W.3d at 13; see Tex. R. Civ. P. 166a(b), 

(c). Where a no-evidence motion for summary judgment and a traditional motion for 

summary judgment are filed that respectively asserts that the plaintiff has no evidence 

of her claim and that the defendant has conclusively negated the same element of her

claim, the existence of a fact issue defeating the no-evidence motion defeats the

traditional motion as well. See Arredondo v. Techserv Consulting & Training, Ltd., 

567 S.W.3d 383, 400 (Tex. App.—San Antonio 2018), aff’d in part and rev’d in part on 

other grounds, 612 S.W.3d 289 (Tex. 2020).

Where a trial court’s summary judgment order does not state the bases for the 

trial court’s decision, we must affirm the order if any of the theories presented to the 
12

trial court and preserved for appellate review are meritorious. See Provident Life & 

Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 

915 S.W.2d 471, 473 (Tex. 1995).

III. Analysis of No-Evidence Summary Judgment

A. Negligent Activity

Recovery on a negligent activity theory requires that the person have been 

injured by or as a contemporaneous result of the activity itself rather than by a 

condition created by the activity. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523,

527 (Tex. 1997) (plaintiff who fell on pipe thread protectors left lying on the ground

involved a premises defect, not a negligent activity); Keetch v. Kroger Co., 845 S.W.2d 

262, 264 (Tex. 1992) (plaintiff slipped on floor made slippery by plant spraying but 

since plaintiff was not injured by activity of spraying itself, but by condition resulting 

from spraying, there was no basis for a negligent activity claim). In this case, Harkins’

contention was that she tripped because Wal-Mart created an unreasonably dangerous 

condition by using a mat that would roll up when her foot contacted it, causing her to 

fall. Like Keetch and Williams, this is a premises defect case, not a negligent activity 

case. See Parrish v. SMG, No. 01-16-00934-CV, 2017 WL 6043536, at *6 (Tex. App.—

Houston [1st Dist.] Dec. 7, 2017, no pet.) (mem. op.). We overrule Harkins’ first 

point of error as to this cause of action and affirm the trial court’s take-nothing 

judgment as to liability based on negligent activity.
13

B. Premises Liability

1. Legal Principles

The elements of a premises liability claim involving an invitee injured on the 

owner/occupier’s premises are (1) that the owner/occupier had actual or constructive 

knowledge of some condition on the premises; (2) that the condition posed an 

unreasonable risk of harm to the plaintiff; (3) that the owner/occupier did not 

exercise reasonable care to reduce or to eliminate the risk; and (4) that the 

owner’s/occupier’s failure to use such care proximately caused the plaintiff’s personal 

injuries. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (quoting 

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)); Keetch, 845 S.W.3d at 

264. The invitee may rely upon direct or circumstantial evidence to raise a fact issue

on any of these elements. Garcia v. Wal-Mart Stores, L.L.C., 893 F.3d 278, 279 (5th Cir. 

2018).

Regarding the first element, an invitee may raise a fact issue on the notice

element by presenting evidence establishing that (1) the defendant placed something 

on the floor, (2) the defendant actually knew that the material was on the floor, or 

(3) it is more likely than not that the condition existed long enough to give the 

premises owner/occupier a reasonable opportunity to discover it. Wal-Mart Stores, Inc. 

v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). The fact that the owner/occupier of a

premises created a condition that posed an unreasonable risk of harm may support an 

inference of knowledge. Keetch, 845 S.W.2d at 266; Hall v. Sonic Drive-In of Angleton, Inc.,
14

177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Additionally, 

in assessing actual knowledge that a condition presents an unreasonable risk of harm, 

courts may consider whether the premises owner had received reports of the potential

danger presented by the condition. City of Beaumont v. Isern, No. 09-19-00451-CV, 

2020 WL 4680200, at *4 (Tex. App.—Beaumont Aug. 13, 2020, no pet.) (mem. op.).

The second element—whether the material on the floor created an 

unreasonable risk of harm to the invitee—is a bit more amorphous. Ordinarily, the 

extent to which a condition creates an unreasonable risk of harm is fact specific and is 

a question for the jury. Duncan, 464 S.W.3d at 18; Christus Health Se. Tex. v. Wilson, 

305 S.W.3d 392, 397 (Tex. App.—Eastland 2010, no pet.). “A condition poses an

unreasonable risk of harm for premises-defect purposes 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) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 

752, 754 (Tex. 1970)). In other words, “whether a condition constitutes a danger is a 

function of reasonableness.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 

1975). If an ordinarily prudent person could foresee that harm was a likely result of a 

condition, then it is a danger. Id.; Duncan, 464 S.W.3d at 18. A dangerous condition is 

one that presents a substantial risk of injury when the property is used with due care 

in a manner in which it is reasonably foreseeable that it will be used. Tex. Dep’t of 

Transp. v. Padron, 591 S.W.3d 684, 697 (Tex. App.—Texarkana 2019, pet. denied)
15

(citing Knorpp v. Hale, 981 S.W.2d 469, 474 (Tex. App.—Texarkana 1998, no pet.)).

Foreseeability “does not require that the exact sequence of events that produced an 

injury be foreseeable.” Cnty. of Cameron, 80 S.W.3d at 556; Duncan, 464 S.W.3d at 18.

Instead, only the general damage must be foreseeable. Id.

The third element is that the owner/occupier did not exercise reasonable care 

to reduce or to eliminate the risk. The owner/occupier’s duty is to either adequately 

warn of the dangerous condition or make the condition reasonably safe. TXI

Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009). Negligence is commonly a 

question of fact unless the evidence establishes a complete absence of negligence as a 

matter of law. Cnty. of Cameron, 80 S.W.3d at 556.

The last element is that the owner’s/occupier’s failure to use such care 

proximately caused the invitee’s injuries. The proximate cause element of a premises 

liability claim has two components: cause-in-fact and foreseeability. LMB, Ltd. v. 

Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

2. Application of Law to Facts

First, we must address Wal-Mart’s preservation argument.2 Did Harkins fail to 

address all grounds on which the no-evidence motion could have been granted? No. 

2

When, as here, a party moves for summary judgment on multiple grounds and 

the trial court’s summary judgment order does not specify the ground(s) on which it is 

based, the appellant must negate all possible grounds on which the summary 

judgment could be based. See Star-Telegram, Inc., 915 S.W.2d at 473; Emmert v. 

Wilmington Savings Fund Society, FSB as Trustee for ARLP, Securitization Trust, Series 2015-

1, No. 02-00012-CV, 2021 WL 733301, at *2 (Tex. App.—Fort Worth Feb. 25, 2021, 
16

Wal-Mart’s motion contended that there was no evidence of (1) an unreasonable risk 

of harm; (2) its knowledge of an unreasonably dangerous condition; (3) its breach of 

duty; and (4) proximate cause of injury (specifically, that “Plaintiff’s fall was 

proximately caused by any action or inaction on the part of Defendants” [Emphasis 

added]). Wal-Mart did not contend that there was no evidence of injury or that 

Harkins’ injury was caused by the fall.

Wal-Mart now contends on appeal that although Harkins raised a Malooly issue

regarding the granting of the no-evidence motion, she did not challenge all of the 

grounds upon which the no-evidence motion could have been granted. Although not 

as clearly organized as Wal-Mart asserts is necessary, Harkins argues in her argument 

and authorities that Wal-Mart was aware that: 1) it had customers who would drag 

their feet when they walked in the store; 2) customers who drag their feet while 

pet. denied) (mem. op.); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—

Dallas 2009, pet. denied). To do this, an appellant may challenge a summary judgment 

by raising a general assignment of error covering all possible summary-judgment 

grounds (a “Malooly issue”) or specific assignments of error for each individual 

ground. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Rollins v. Denton 

Cnty., No. 02-14-00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 

2015, no pet.) (mem. op.). But “[e]rror is not preserved as to every ground on which 

summary judgment could be based simply by raising a general issue; the appellant 

must also support the issue with argument and authorities challenging each ground.”

Rollins, 2015 WL 7817357, at *2. “When an argument is not made challenging every 

ground on which the summary judgment could be based, we are required to affirm the 

summary judgment, regardless of the merits of the unchallenged ground.” Id. WalMart contends that although Harkins raised a Malooly issue, she did not challenge each 

ground on which summary judgment could have been granted with argument and 

authorities. As will be addressed below, we disagree and overrule Wal-Mart’s point in 

this regard.
17

walking can hit their toes on the mats, kicking up the mats; 3) mats that curl up create 

a fall risk for patrons; 4) the mats were not supposed to be put between the automatic 

doors because it could cause them to curl but Wal-Mart’s greeter did just that about 

20 minutes before Harkins’ fall; 5) the mat did curl repeatedly for a period of time 

thereafter; and 6) the video, confirmed by Lori Bernard’s testimony, showed that 

Harkins tripped when her left toe hit the edge of the mat near the point where the 

rolling had occurred with the doors, causing the mat to roll up and her to trip and fall. 

We overrule Wal-Mart’s point that Harkins failed to address all grounds to the noevidence portion of the summary judgment. Plexchem Int’l Inc. v. Harris Appraisal Dist., 

922 S.W.2d 930, 930–31 (Tex. 1996); Game Sys., Inc. v. Forbes Hutton Leasing, Inc., 

No. 02-09-00051-CV, 2011 WL 2119672, at *4 n. 17 (Tex. App.—Fort Worth May 

26, 2011, no pet.) (mem. op.); Reynolds v. Murphy, 188 S.W.3d 252, 257 n. 3 (Tex. 

App.—Fort Worth 2006, pet. denied).

Moving on to the merits of the appeal on the no-evidence summary judgment, 

we start by asking if there is more than a scintilla of evidence that an unreasonably 

dangerous condition existed? The answer is yes. Wal-Mart’s characterization that the 

alleged unreasonably dangerous condition was the presence of the floor mat itself is a 

mischaracterization. The danger in question was the use of a mat that could lay flat 

but with the application of minimal force could roll up and cause a patron to trip and 

fall. So, what is a dangerous condition that presents an unreasonable risk of harm? It 

is one which “creates a substantial risk of injury when the property is used with due 
18

care in a manner in which it is reasonably foreseeable that it will be used.” Knorpp, 

981 S.W.2d at 474 (citing Black’s Law Dictionary 394 (6th ed. 1990)). A mat on a 

floor in an entry way to a store is obviously expected to be walked on by patrons as

they enter and exit the store, as evidenced by the video. Was it reasonably foreseeable 

to Wal-Mart that some patrons would walk in a manner that their feet would drag?

Was it reasonably foreseeable to Wal-Mart that patrons dragging their feet would hit 

their toes on the edge of the carpet and cause it to curl? Was it reasonably foreseeable 

to Wal-Mart that a mat that curls up can cause a patron to trip and fall? The answer to 

all three questions was in the affirmative according to Wal-Mart’s managers’

testimony. Since a dangerous condition is one which presents a substantial risk of 

injury when the property is used with due care in a manner in which it is reasonably 

foreseeable that it will be used, we hold that there was more than a scintilla of 

evidence that the mat in question posed an unreasonable risk of harm to patrons.

Was there more than a scintilla of evidence that Wal-Mart had knowledge of 

the dangerous condition? Yes. An invitee may satisfy the notice element by 

establishing that (1) the defendant placed something on the floor, (2) the defendant 

actually knew that the material was on the floor, or (3) it is more likely than not that 

the condition existed long enough to give the premises owner/occupier a reasonable 

opportunity to discover it. Reece, 81 S.W.3d at 814. There is evidence demonstrating

that Wal-Mart knew of the likelihood that patrons would drag their feet and that 

patrons who dragged their feet approaching these mats would cause them to curl. 
19

Wal-Mart also knew that similar forces would cause these mats to curl up, i.e., if 

placed between the automatic doors, the weather stripping on the bottom of the 

doors would catch the mat and curl it up. Wal-Mart also acknowledged that a curledup mat was a fall risk for patrons. Despite this knowledge, Wal-Mart used the mat in 

question in the high traffic entry/exit. Further, Wal-Mart’s greeter actually placed the 

mat between the automatic doors as seen on the video, which resulted in the mat 

curling up on numerous occasions.

The fact that the owner/occupier of a premises created a condition that posed 

an unreasonable risk of harm may support an inference of knowledge. Keetch, 

845 S.W.2d at 266. Here, there is not only an inference of knowledge based on WalMart’s creation of the condition but its manager, Angela Brown, had actual knowledge 

of the risk but summarily dismissed it in her testimony by saying, “People kick the 

corners up. That happens. I don’t understand what you’re trying to get at.”

Additionally, Ms. Bernard, another manager, in testifying that Harkins’ shoe tip 

“interacted with the rubber edging of the mat” and caused the mat to flip up as she 

went forward, said “It’s—it happens to any of us.” The extent of the risk was 

demonstrated on the video in Harkins’ fall and in the minimal effort of the gentleman 

who, just minutes after her fall, was able to flip the mat up with his foot after the 

greeter had laid it back flat. Harkins’ contact did not just “kick the corner up” with 

minimal contact, it resulted in a significant portion of the mat flipping up and her 

tripping and falling over it.
20

The third element is that the owner/occupier did not exercise reasonable care 

to reduce or eliminate the risk. The owner/occupier’s duty is to either adequately 

warn of the dangerous condition or make the condition reasonably safe. Was there 

more than a scintilla of evidence that Wal-Mart failed to exercise reasonable care to 

reduce or eliminate the risk? Yes. In the record before us, it appears that the only 

signage in the area had to do with wet floors. Thus, there was evidence that Wal-Mart 

failed to warn patrons of the danger. What actions did Wal-Mart take to make the area 

safe? The only precaution Wal-Mart supposedly took was to instruct their greeters to 

constantly watch the mats, not to place the mats between the automatic doors or 

allow them to be there. However, just the opposite of that occurred here as 

demonstrated on the video for both sets of automatic doors as the mats were placed

between the automatic doors and left there. Regardless, placing the mats outside of 

the paths of the automatic doors or having the greeters continuously watch the mats 

would not necessarily address the danger that Harkins identifies because she argues 

that the mats’ propensity to curl even when flat when used by “foot dragging” patrons 

is the danger in question, and she produced some evidence to support this contention.

Finally, there is the element of proximate cause. Wal-Mart’s no-evidence 

challenge was that there was no evidence that the condition proximately caused the 

fall. As previously discussed under foreseeability, there was evidence that it was 

reasonably foreseeable to Wal-Mart that this trip and fall, or something similar, would 

happen under the circumstances. Based on the video of the incident, there is evidence 
21

from which a jury might reasonably believe that Harkins was walking in a foot 

dragging manner that caused her toe to impact the edge of the mat and cause it to curl 

up and cause her to trip and fall. Thus, there was more than a scintilla of evidence 

regarding the element of proximate cause.

Having found more than a scintilla of evidence to support each element of 

Harkins’ premises liability claim against Wal-Mart, we sustain Harkins’ first point of 

error as to the no-evidence motion for summary judgment on premises liability.

IV. Analysis of Traditional Motion for Summary Judgment

Wal-Mart moved for traditional summary judgment on two grounds: 1) that it 

did not have notice “of the condition complained of in this matter,” and 2) that the 

“condition” was not concealed from her. The condition on which the traditional 

motion was directed was either the presence of the mat itself or whether the mat was 

rolled up. As previously noted, though, the dangerous condition purportedly creating 

the unreasonable danger was neither the mat itself nor a rolled-up condition of the

mat, it was the propensity of the mat to roll and cause tripping when struck by a 

patron’s foot in a reasonably foreseeable manner in the usual and expected use of the 

mat. There is evidence that this condition was not reasonably observable by Harkins

or any other similarly situated patron but was known to Wal-Mart. In effect, WalMart’s traditional motion for summary judgment is the mirror image of its noevidence motion for summary judgment. Therefore, the evidence that created fact 

issues in response to the no-evidence motion for summary judgment also creates fact 
22

issues precluding summary judgment on the traditional grounds. Arredondo, 

567 S.W.3d at 400. We hold that the trial court erred in granting Wal-Mart’s 

traditional motion for summary judgment and sustain Harkins’ second and third

issues.

V. Conclusion

We overrule Harkins’ first issue presented regarding her claim of liability 

against Wal-Mart for negligent activity and affirm the trial court’s take-nothing noevidence summary judgment on that claim. We sustain the remainder of Harkins’

issues presented and reverse the remainder of the trial court’s summary judgment and 

remand the case to the trial court for further proceedings.

/s/ Mike Wallach

Mike Wallach

Justice

Delivered: June 23, 2022