## 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 Tr ial Court No. C08035

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

Memorandum Opinion by Justice Wallach 

### T ONYA 

### G AYLE 

### H ARKINS 

### , Appell ant

V


### . W AL



### - M ART 

### S TOR ES 

### T EXAS 

### , LLC, D 

### / B 

### / A 

### W AL



### - M ART 

### S TORES 

### T EXAS 

### 2007, LLC , W AL



### - M ART 

### S UPER 

### C ENTER 

### , AND 

### W AL



### - M ART 

### , Appellees2 MEMORANDUM OPINION
This is a personal injur y case arising from Appellant Tonya G ayl e Harkins ’ trip
and fall at a Wal

- Mart store in Gran bury, Texas. Har kins s o ught 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

- M art ) based on premise s liability and negligent activity theories

. Wal

- Mart filed a hybrid motio n for summary judgment in which it sought a traditional summary judgment on the premi s es liability
claim bec ause it did not have notice of any such condition and the allege d

unreasona bly dangerous condition was not concealed, thereby negating any duty to
h e r. It argued for a no

- evidence summary judgment on that claim on the grounds that
there was n o evidence of (1) an unreasonable risk of harm; (2) knowledge of a n

unreasona bly dangerous condition; (3) breach of duty; or (4) proxim ate cause. Further, Wal

- Mar t contended that there was no evidence that Harkins ’ fall was caused by a cont emporaneous negl igent activity, requiring dismissal of Harkin s ’ negligent activity claim. The trial court granted both motions without spec ifying the bases of its ruling
and Hark i ns now appeals th at order. Because Harkins ’ own arguments establish this is a premises defect case, w e will affirm that portion of the judgm ent grantin g Wal

Mart ’ s no

- evidence motion for summary judgment regarding negligent activity. However, w e will reve r se t he remainder of the summary judgment regarding premise s3 liability and remand the case to the trial court for further proceedings because the
eviden ce 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
. Harkin s filed this personal injury case against Wal

M art on Jul y 30, 2019 assert ing negligen t activity and premises liability theories again st Wal

- M art. The negligence allegations in the pet i tion were that Wal

- M art: (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 insp ect the area in question, when it kn e w or should have known of the unreasonably dangerous condition; (d) f ailed to provide a safe common area a t the premi ses in question; (e) failed to adequately warn the p laintiff that the dan gerous condition existed; (f) failed to block off or guard the ar e a so as to prevent its invitees from using this area; (g) failed to timely correct the dangerous condition once it wa s discovered; (h) failed to exercise reasonable care, diligence, and prud ence so as to pr ot ect the safety of persons on the premises

. Wal

- M art answered with a general denial and multiple affirmative defenses , including that the alleged condition was open and obvious and not concealed. Wa l

M art then filed a traditional mot ion for summary judgment contending that it did not
have notice of the a lleged unreasonably dangerous condition and the alleged4 unreasonably dangerous condi tion was no t concealed, thereby negating any duty to
Harkins

. This trad iti on al motion was co mbined with a no

- evidence motion for summary judgment in which Wal

- Mart contend e d that there was no evidence : (1) of

an unreasonable risk of harm; (2) t hat it had notice of an unreasonably dangerous condition; (3) of a breach of duty; and (4) of pr oximate ca use 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

- M art did not contend that there
was no evidence of injury

. F urther, Wal

- Mart argued that there was no evidence that
Harkins ’ fall was caused by a contemporaneous acti v

ity of any of its employ ees, requiring dismissal of Harkins ’ negligence claim.
I n support of its tradition al 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 un r easonably dangerous but that the floor mat was un reasonably dangerous because it was prone to rolling up when in normal use, th ereby causing an unreasonable risk of t ripping and fall ing, and that risk was concealed and Wal

- M art did not exercise reasonable care to fix it, to warn its patrons , or to protect th em against it.
Harkins ’ evidence in response to Wal

- M art ’ s motions came from deposition excerpts from Lor i Bernard , Wal

- M art ’ s customer service manager , and Angela Brown, Wal

- M art ’ s Assistant Manager ; a sur veil lance video recording of the eve nt and
screen captures therefrom ; Wal

- M art ’ s customer incident report and cust omer5 incident video request form related to Harkins ’ incident; and a print out of Wal

- Mart ’ s

“ F loor M at P rogram. ” We will begin with the se cur ity video

. Unlike many cases where events can only be described through the senses and memories of human witnesses, here we have an actual v ideo recording of the events beginning an hour before the fall and ending an
hour after it. The video reveals tha t t he a r ea in question is the entrance/exit of the
Wal

- M art store. In the foreground is the inside of the store, and in the backg round is
the outside of the store. Also visible i n the foreground is a blue equip ment station
wit h a water bucket and moppin g e qui pmen t 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 do ors with hor izontal metal bars in them

. Each se t of doors is sp lit in the middle and open and clo se by each door moving to and from the middle of the door opening. F rom 5:25 p.m. to 6:25 p.m. , th e video show s a high volume of foot traffic with many people entering and leaving through both sets of doors , so me pushing groce ry carts, other s not. At 5:25 p.m . , the r ight

- door side ( the side i n 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 d oors. Between 5:25 p.m. and 6: 25 p.m. , the automati c d oor s on the left side never close , remaining conti nuously in the open position

. The door mat on the left side moves
very little from its originally viewed po sition between the doors

.6 Wal

- M a rt ’ s greeter, Ro nnie, repositioned the mat on the right side at 5 : 3 0 p .m. from the exterior side of the auto matic doors to a position where the front few inches
of the mat were d irectly between the automatic doors. He did this by simply using his
foot to gli de the mat acros s the floor. Between 5:30 p.m. and 5:52 p.m. , the pe des t rian
traffic had slid the right

- side m at 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: 1 2 p.m. , the right front portion of the mat rolled up
11 t ime s a s the automatic doors closed and rolled ba ck flat each time the doors

re opened. The roll ed

- 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 w as ro l lin g up and bac k out , three patron s used a foot to help the mat unroll as the doors opened. No one else appeared to have difficulty with the mat b etween 5:25 p. m. and 6:25 p.m. but no one appeared to have con tacted the front of the mat
with the toe of a s h oe . 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. , R onnie is seen in the video working in the area f requently but al so ou t of the cam er a ’ s v iew for periods of time . When in view, Ronnie was greeting

c ustomers, arranging baskets, moving motorized carts, cleaning, and doing other
misc ellaneous tasks. However, he did not appear to be paying much direct a ttention

to the floor mat and only move d i t twice as described

.7 At 6:25 p.m. , a man approaches the righ t

- side doors, which are closed. They
open as he approaches , and he exits without incident. A nother person then approaches, pushing a basket, and exits witho ut difficulty. H arkins then approa che s. S he i s 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 appear s to be
flat. Her right foot contact s the right front of the mat first. No mat movement is
vi sible

. As she moves her left foot forward, the toe of her shoe cont acts 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 anyth ing other than t o move her foot
for wa rd . W h en her left shoe ’ s toe contacted the mat, the mat curled back f rom the point where her toe contacted the mat and roll ed up in a diagonal direction such that
about one quarter of the left front mat curled up, resulting in Harkins ’ tri p and fall.
The v ideo s hows that Harkins took a significant fall. She stayed on the floor for a p eriod of time and was immediately assisted by other patrons
. As H arkins was laying
on the mat after her fall, Ronnie , who is just a few feet fr om her , sees her about
30 se con ds afte r her fall, and as he goes to check on her, he rolls the rug back flat using his foot

. At 6:30 p.m. , a n u nidentified male walks to the front of the mat and
moves his f oot into the front of the mat as if he was checking t o see how easily the

mat w oul d roll u p . 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

- M art managers , the following

matters relevant to our review are gleaned :

a. Lori Bern ard: 1) the weat her stripp ing on the bottom of the automatic doors sometimes catches the mats and causes the m 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 n o t unroll when th e doors close ; 3) viewing H a rkins ’ fall o n the video, B e rnard agree d 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 volitio n ; 4) i t was Ronn ie the doo r greeter ’ s job to se e that the ma ts 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 jo b to “ constantly ” watch th e mats and keep the mats in proper position ; 2) it w as known to Brown t hat 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 4 1 of her deposition that a curled mat should be replac e d. However, there was no page 4 1 from Brow n’s d eposi tion attached to the summary judgment response and there is none i n the clerk’s record. Thus, we cannot consider it in our review. Mathis v. Re storation Builders, Inc. , 231 S.W.3d 47, 52 (Tex. App.

— Houst o n [14th Dist.] 2007, no pet.).9 II. Standards of Review We review a summary ju dgment de novo. Travelers Ins. Co. v

. Joachim , 315 S.W.3d 860, 862 ( Tex. 20 10). No

- evidence and trad iti onal gro unds for summary judgment may be combined in a single hybrid motion. Binur v. Jacobo , 135 S.W.3d 646,
650

– 51 ( Tex. 20 04); Coleman v. Prospere , 51 0 S.W.3d 516, 51 8

– 19 (Tex. App.

— Dall a s 2014, no pet.). When a trial court grants both a no

- evidence and a tradi tional motion
for summary judgment, we first consider the no

- evidence motion. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 ( Tex. 20 04).
After a n adequate time for discov ery, the p a rty without the burden of proof may, without presenting evidenc e, 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. 16 6a(i). The motio n must spe cifically s tate the elements for
which there is no evidence. Id. ; Timpte I ndu s., Inc. v. Gish , 286 S.W.3d 306, 310 ( Tex.
20 09) ; 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 unl ess the no n movant produces summary judgment evidence that raises a genui ne is sue of m aterial fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson , 249 S.W.3d 425, 426 ( Tex. 20 08) ; Duncan , 464 S.W.3d at 13

. When reviewing a no

- evidence sum mary judgm ent, we ex a mine the
entire record in the light most favorable to the nonmo van t, indul ging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan , 199 S.W.3d 291, 292 ( Tex. 20 06) ; D uncan , 464 S.W.3d at 13 . We review a no

- evid ence summa r y10 judgment for evidence that would enable reasonable and f air

- m ind ed juror s to differ
in their conclusions. Hamilton , 249 S.W.3d at 426 ; City of Keller v. Wilson , 168 S.W.3d 802, 822 ( Tex. 20 05). Both direct and circums tantial evidence may be us ed to esta b lish any material fact. Ford Motor Co. , 135 S.W.3d at 601. We c red it evide nce 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.3 d at 310 ; M ack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 ( Te x. 20 06). If the nonmova nt brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no

- evidence summary judgment i s not proper. Sm ith v. O ’ D onnell , 28 8 S.W.3d 417, 424 ( Tex. 20 09); King Ranch, Inc. v. Chapman , 118 S.W .3d 742,
751 ( Tex. 20 03) ; Duncan , 464 S.W.3d at 1 4

.

More than a scintilla of evidence exists when the evidence rises to a level that
would e nable reasonable and fair

- mind ed people t o differ in their conclusions. Ford
Motor Co. , 135 S.W.3d at 601. Eviden ce 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 plaint i ff is not requir ed to marshal her proof b ut 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 injure d when her arm w as pinched in an elevato r closing raised a fact issue on unreasonable danger and notice through h er affidavit testi mony that two women wearing hospital name badges told her this had happened before and deposition11 testimony of the hospital ’ s engineer that an i ncident like the patient ’ s wou ld pose an
unreasonable risk of harm to the public.)

. In reviewi ng a traditional summary judgment, w e consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable
to the nonmovant if reasonable ju rors could, an d disregar d ing evidence contrary to
the nonmovant unless reasona ble jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 ( Tex. 20 09); Duncan , 464 S.W.3d at 13. We indulge every reasona b le inference and resolve any d oubts in t h e nonmovant ’ s favor. 20801, Inc. v. Parker , 249 S.W.3 d 3 92, 399 ( Tex. 20 08); 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. 20 10); Duncan , 4 64 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 judg ment are filed that respectively a ssert s that th e plaintif f has no evidence
of her claim and that the defendant h as conclusivel y negated the same element of her
claim , the existence of a fact issue defeating the no

- evidence motion defeats the
tradition al motion as wel l. See Arredondo v . Techserv Consulting & Training, Ltd. , 567 S.W.3d 383, 400 (Tex. App.

— San Antonio 201 8 ) , 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 no t state the base s for the
trial c ourt ’ s dec i sion, we must affirm the order if any of the theories presented to the12 tria l c ourt and pres erved for appellate review are meritorious. See Provident Life &
Accident Ins. v. Knott , 128 S.W.3d 211, 216 ( Tex. 20 03); Star

- Telegr am, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995).
III. Analysis of No

- Evidence Summary Judgment
A. Negligen t A ctivity Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of t he activity itse lf rather than by a conditio n created by the activity. Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 5 23,
52 7 (Tex. 1997) (plaintiff wh o fell on pipe thread protectors left lying on the ground involved a premises d efect, not a neg ligent activity) ; Keetch v. Kroger Co. , 845 S.W. 2 d 262, 264 (Tex. 1992) (plaintiff slipped on floor made slippery by plant s pray ing but since plaintiff was not injured by activity of spraying itself, but by condition re sulting
from spraying, there was no basis for a negligent activity claim)

. In this ca s e, Harkins ’
contention was that she tripped because Wal

- Mart created an unreaso nab ly dange rous condition by using a mat that would roll up when her foot contacted it, causing her to
fall. Like Keetch and Willia ms , this is a pr emises defect case, not a neg l igent activity

case. See Parrish v. SMG , N o. 01

- 16

- 00934

- CV, 2017 WL 6043536, a t * 6 (Tex. App.

— Houston [ 1st Dist.] Dec. 7, 20 17 , no pet.) (mem. op.)

. We overrule Harkins ’ first point of error as to this cause o f action and aff irm the trial court ’ s take

- no t hing judgment as to liability based on negligent activity.13 B. Premises Liabili ty 1. Legal Principles The elements of a premises liability claim involving an invitee injured on the

owner / occupier ’ s premises are (1) that the ow ner/occupier had act ual or con s tructive knowledge of some condition on the premises; (2) that the condition p ose d an

un reasonable risk of harm to the plaintiff; (3) that the owner/occupier did not
exercise reasonable care to reduce or to el iminate the risk ; and (4) that the

o wner ’ s/occ u pier ’ s failure to use such care proximately caused the plaintiff ’ s personal
in jur ies. Un ited Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 471 (Tex. 2017 ) (quoting
Corbin v. Safeway Stores, I nc. , 648 S.W.2d 292, 296 (Tex. 1983) ) ; Keetch , 845 S.W.3d at 264

. The invi t ee may rely upon direct or circumstantial evidence to raise a fact is sue

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 , a n invitee may raise a fact issue on the notice
element b y presenting evidence establishing that (1) the defendant placed somet hin g 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 lon g enough to give the
prem ises owner / occu pier a reasonable opportunity to discover it. Wal

- Mart Stores, In c. 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 knowle d ge. Keetch , 845 S.W.2d at 266 ; Hall v. Sonic Drive

- I

n of Angleton, In c. ,14 177 S.W.3d 636, 64 5 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied). Additionally, in assessing actual knowledge that a condition presents an unr easonable risk o f harm,

c ourts may c onsider whether the premises owner had received reports of the potent i al danger presented by the condition. City of Beaumont v. Isern , N o . 09

- 19

- 00451

- CV,
2020 WL 4680200, at *4 (Tex. App

. — Beaumont Aug. 13, 2020, no pet. ) (mem. op.)

. Th e second element

— wh e ther the material on the floor created an
unreasonable risk of harm t o t he 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 qu estion for the j ury. Duncan , 464 S.W.3 d at 18; Christus Health Se. Tex. v. Wilson , 305 S.W.3d 392, 397 (Te x. Ap p.

— 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 eve nt occurring that a re a sonably prudent person would have
foreseen it or some similar event a s l ikely to happen. ’” Cnty. of Cameron v. Brown , 80 S.W.3d 549, 556 ( Tex. 20 02) (quoting Seideneck v. Cal Bayreuther Assocs. , 451 S.W.2d 752, 754 ( T ex. 19 70)). In o ther words, “ whether a c ondition constitutes a danger is a
function of reasonableness. ” Rosa s v . Buddies Food Store , 518 S.W.2d 5 34, 537 ( Tex.
19 75)

. If a n ordinarily prudent person could foresee that harm wa s a likely result of a condition, then it is a danger. Id. ; Duncan , 464 S.W.3 d at 18. A dangerous condition is

one that presents a substanti al r isk 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.2 d 4 69, 474 (Tex. A pp.

— 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 , 4 64 S.W.3d at 18. Instead, only the general damage must be foreseea ble. 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 i s to either adeq uately

warn o f the dang e rous condition or make the condition reasonably safe. TXI Operatio ns, 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 ne gligence as a

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

. The la s t element is that the own er ’ 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 foreseeab ility. LMB, Ltd. v. Moreno , 201 S.W.3d 68 6 , 688 (Tex. 2006).
2
. App lication of Law to Facts First, we must address Wal

- Mart ’ s prese rva tion argument. 2 Did Harkins fa il to
address all grounds on which the no

- evidence motion could have been granted? No.

2 W hen, as h ere, a par ty moves for sum mary judgment on multiple grounds and the trial court ’ s summary judgment order does not specify the ground (s) on which it i s ba sed, the appellant must negate all possible grounds on which the summary judgment could be bas ed. See S tar

- T elegr am, Inc. , 915 S.W.2d at 473 ; Emmert v. Wilmington Savings Fund S ociety, FSB as Trustee for ARLP, Securitizatio n Trust, Series 2015

- 1 , No. 0 2

- 00 012

- CV , 2021 WL 733301, at * 2 (Tex. App.

— F ort Worth Feb. 25, 2021,16 Wal

- Mart ’ s motion contended that the re was no e vidence of (1) a n unre aso nable r isk of harm; (2) it s knowledge of an unreasonably dangerous condition; (3) its breach of duty; and (4) proximate cause of injury (specifically, th a t “ Plaintiff ’ s fall was proximately caused by any action or inacti on on the p art of Defendants ” [E m pha sis
added ])

. Wal

- M art did not contend that there was no evidence of injury or that
H arkins ’ injury was caused by the fall.
Wa l

- M art now contends on appeal that although Harkins raised a Malooly issue regarding the granti ng of th e n o
- evidence mo tion , she di d not challenge all of the grounds upon which the no

- evidence motion could have been granted

. Although not

as clearly organized as Wa l

- Mart asserts is necessary, Harkins argues i n h er argument and authorities t hat Wal

- M a rt was awa r e that : 1) it had cust ome rs who would drag their feet when they walked in the store ; 2 ) customers who drag their feet while pet. denied) (mem. op.) ; Ja rvis v. R ocanv ille Corp. , 298 S.W.3d 305, 313 (Tex. App.

— Dallas 2009, pet. denied). To do this, an appellant may challenge a summar y judgment by raising a general assignment of error covering all possib le summary

- judgment g rounds (a “ Malooly issue ” ) or s pe cific ass ignme nts of error for each individual ground. See Malooly Bros. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970); Rollins v. Denton C

n ty. , No. 02

- 14

- 00312

- CV, 2015 WL 7817357, at *2 (Tex. App.

— Fort W orth Dec. 3, 2015, n o pet.) (mem. op.). But “ [e]rro r i s not pre serve d 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 argu ment and authorities challenging each gr ound. ” Rollins , 2015 WL 7817357, at *2. “ When an ar g um ent is no t mad e challenging every ground on which the summary judgment could be ba sed, we are required to affirm the summary judgment, regardless of the merits of the unchallenged ground. ” Id. Wal

M art contends that althou g h Harkins raised a Malooly iss u e , she did not c hallenge each ground on which summary judgment could have been grant ed with argument and authorities. As will be addressed below, we disagree and ov errule Wal

- M art ’ s point in this regard.17 walking c an hit their toes on the mats , kicking up the mats ; 3) ma ts that curl up create a fall risk for patron s ; 4) the mats w ere n ot supposed to be put bet ween the automatic
doors because it could cause them to curl but Wal

- M art ’ s greeter did just that about
20 minutes before Harkins ’ fall ; 5) the mat did curl repeat edly for a period of time
thereafter ; and 6) t he video , confir med b y Lori Bernard ’ s testi mony , showed that Harkins tripped when her left toe hit the edge of the mat near the point where the rolling h ad occurred with the doors, causing the mat to roll up and he r to trip and fall

. We overrule Wal

- M art ’ s point tha t Hark ins f ailed to address all g roun ds to the no

evidence portion of the summary judgment. Plexchem Int ’ l Inc. v. Harris Appraisal Dist. , 922 S.W.2d 93 0, 930

– 31 (Tex. 1996); Gam e Sys

. , Inc. v. Forbes Hutton Leasing, Inc. , No. 02

- 09

- 00051

- CV, 2011 WL 2119672, at * 4 n

. 1 7 (Tex. App.

— Fort W orth May 26, 2011, no pet.) (mem. op.) ; Reynolds v. Murphy , 188 S.W.3d 2 52 , 25 7 n . 3 (Tex. App.

— Fort Worth 2006, p et. denied)

. Moving on to the merits of the appeal on th e no

- evidence summary judgment,
we start b y asking if th er e is mor e than a scintilla o f ev idence that an unreasonably dangerous condition existed ? The answer is y es . Wal

- M art ’ s characterization that the alleged unreasonably dangerous condition was the presence of the floor ma t itself is a
mischaracter ization. T he dan ger i n 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 wh ich “ creat es a s ubst a ntial risk of injur y wh en the property is used with due18 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 ent ry way to a s tore is obviously expect ed t o be walked on by patrons as they enter and exit the store , as evidence d by the video

. Was it reasonably foreseeable
to Wal

- M art that some patrons would walk in a manner that their feet would drag ?
Was it reasona bly forese eable to W a l

- M art that patrons dra gging their feet would hit their toes on the edge of the carpet and cause it to curl? Was it reasonably foreseeable
to Wal

- M art that a mat that curls up can cause a patron to trip and fa ll? The answer to
all thre e qu estion s was in t h e affirmative accor ding to Wal

- M art ’ 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
fore seeable that it will be u sed, w e ho l d that there was mo re t han 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 th at Wal

- M art had knowledge of the dangerous c onditio n ? Yes. An invi tee may sa tisfy the n otice element by

es tabl ishing 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 en ough to give th e premises owner /occ u pier a reasonable

o ppor tunity to discover it. Reece , 81 S.W.3d at 8 14. T he re is evidence demonstrating
that Wal

- M art knew of the likelihood that patrons would drag their feet and that
patron s who dragged their feet approaching these mats woul d c ause the m t o cu rl.19 Wal

- M art al s o k new 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

- M art also acknowledged tha t a curled

up mat was a fall risk for patrons. Despite this knowledge, Wal

- M art used the mat in question in the high traffic entry/exit. Further, Wal

- M art ’ s greeter actually placed the
mat between the automatic doors as seen on the video, which resulted in th e mat curl i ng u p on numerous o c cas ions. The fact that the owner/occupier of a premises created a condition that posed
an unreasonable risk of harm may support a n inference of knowledge. Keetch , 845 S.W.2d at 266. Here , there is not only an inference of kn owledge ba s ed on Wal

M ar t ’ s cre ati o n of th e condition but its m anager , 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. ”
Add itionally, Ms. Ber nard , another manager, in testifying that Harkin s ’ 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 ri s k was
demonstrated on the video in Ha rki ns ’ fall and in the minimal effort of the gentlem a n 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 ” wi th
minimal cont act, it resulted in a s ignificant 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 ad equately
warn of the dan gerous condition or make the cond ition reasonably safe. Was there
more than a scintilla of evidence that Wal

- M art failed to exercise reasonable care to
reduce or eliminate the risk ? Yes. In the record before us , it appears that t he only signage in the area had to do with w et floors. Thus, there was evidence that Wal

- M art failed to warn patrons of the danger. What actions did Wal

- M art take to make the area
safe? The only precaut ion Wal

- Ma r t supposedly took was to instruct their greeters to constantly wat ch t he mats, not to place the m ats 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
betw een the autom atic doors and l ef t there

. Regardless, placing the mats outside of the paths of the automatic doors or having the greeters continuously watch the mats would not necessarily ad dress the danger that Harkins identifies because she argues that the mats’ propensity to curl e ven 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 el ement of proximate cause. Wal

- M art ’ s n o
- evidence challenge w a s that there w as no evidence that the condition proximately caus ed the
fall. As previously discussed under foreseeability, there was evidence that it was reasonably foreseeable to Wal

- M art that t his trip and fall, or something similar, would happen under t he circumstanc es. Based on the vi d eo o f the incident, there is e vidence21 from whi ch a jury might reasonably believe that Harkins was walking in a foot dragging manner th at caused her toe to impact the edge of the mat and cause it to curl up and caus e her t o tri p and fall. Thus, there was m o re t han a scintilla of evidence regarding the el ement of proximate cause. Having found more than a scintilla of evidence to support each element of
Harkins ’ pre mises liability claim against Wal

- M art, we sustain Harkins ’ f irst point of

er ror as to the no

- ev iden ce motion for summary judgm ent on premises liability.
IV. Analysis of Traditional Motion for Summary Judgment
Wal

- M art moved for traditional summary judgme nt on two grounds: 1) that it
did not ha ve notice “ of the co n dition complained of in this matt er , ” an d 2) that the

“ condition ” was not co ncealed from her

. The condition on which the traditional motion was directed was either the presence of the ma t itself or whether the mat was rolled up. As previ o usly noted, though, the da ngerous condition purportedl y cr eating
the unreaso nable 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 reaso n ably foreseeable manner i n the us ual and expected use of t he

mat. There is e vidence that t hi s condition was not reasonably observable by Harkins or any other similarly situated patron but was kno wn to Wal

- M art. In effect, Wal

M a rt ’ s traditional motion for summary judgment is th e mirror im age of its no

evidenc e mo tion for summary judgment. There fore, the evidence that created fact
issues in response to the no

- evidence motion for summary judgment a lso create s fact22 issues precluding summary judgment on the t r aditional g r ounds. Arre dondo , 567 S.W.3d at 400. We ho ld th at the trial cou rt erred in gran ting Wal

- Mart ’ s traditional motion for summary judgment and sustain Harkins ’ second and third
issues.
V
. Conclusion
We overrule Harkins ’ first issue presented rega r ding her claim of liabi lity again st Wal

- M art for neglig ent a ctivity and aff irm the trial co urt ’ s take

- nothing no

evidence summary judgment on that claim

. We sustain the remainder of Harkins ’
issu es presented and reverse the remainder of the trial court ’ s s ummary judgment and
remand the ca se to the trial cou rt for f urther p roceedings.

/s/ Mike Wallach Mike Wallach Justice
Delivered: June 23, 2022