## In the Cour t of Appeals Second Appel l ate District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00357

- CV

___________________________

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342

- 307880

- 19

Before Bird well, Wallach, and Wa lker, JJ. Memoran dum Opinion by Justice Wa l ker 

### R OXANNE 

### B RADFORD 

### , Appellant

V 

### . T EXAS 

### H EALTH 

### H ARRIS 

### M ETHODIST 

### H OSPITAL 

### , Appelle e2 MEMORANDUM OPINION A f ter appellant Roxanne B radford was injured while helping a patient at appellee Texas Health Harris Methodist Ho spital (the Hospital), B radford filed a premises

- l iabi lity a n d negligence s u it. The trial c ourt gra nted summary judgm ent in favor of the Hospital, which Bradford appeals. B ecause we conclude tha t Bradford raised a genuine issue of material fact on the Hospital ’ s actual and constructive knowledge of the cond ition leading to her i nj ury, we reverse the trial court ’ s summary judgment and dis missal of her premises

- liab ility claim and remand that claim for further proceedings

. But because Bradford does not challenge the dismissal of her negligence and gross

- n e gli gence claims , we affi r m the summary judgment as to those claims. I. BACKGROUND A. F ACTUA

L B ACKGROUND On June 13, 2 018, Bradford went to the Hospital with her son Christian and Christian ’ s girlfriend to await the birth of B radford ’ s grandchild

. B radford accompanied Christia n and his girlfriend because his g irlfriend ’ s mother could not be there tha t day

. If the Hospital had not allowed B radford to be there , Christian ’ s g irlfriend would not have gone to the Hospital tha t day an d would have reschedule d her inducti on for a date her mother was avai lable. The y arriv ed at ap proximately 6:00 a.m. and were quickly taken to room 1 06 in the Ho s pital ’ s labor

- and

- delivery depar tmen t , which is located on the first flo or of the3

Hospital ’ s Siratt Wome n ’ s Center

. Family members were comm o nly present during labo r , and the Hospital promoted and supported t h e practice

. During C hristian ’ s g irlfriend ’ s labor, Bradfor d would ask for ice for her , p ut damp washcloths on her f orehead, and talk to Christian

. Bradford also bought snacks for hersel f and Christian from a vending machine at the Ho s pital

. Other than th is trip to the vending machine, Bradford was as sisting Christian ’ s girlfriend at her bedsi de or while sitting in a chair at the foot of the bed

. B radford never notice d water on the floo r , dripping wate r , or any indication that there was a ce iling leak in room 106

. At some poin t between 4:00 and 6:00 p.m. , Bradford was sitting in the chair when she heard a loud noi se ; part of a ceiling tile broke off a nd hit her on the back of her head and n eck. Tracy Green , the nurse as signed t o Christian ’ s girlf riend, c ame into the room a nd saw a tile on the floor, “ a tile missing out of the c eiling, and

. . . B radford sitting in the chair under . . . where the missing tile was. ” Green had seen
no t i le or wa ter problems in room 1 06 before th e tile fell o n B radford. I n fact , the ceiling tiles i n room 106 had an anti

- microbial coating ; thus, they would not have shown water damage

. Green asked t he nurse supervisor, Ang ie Van Valkenb urg, to
come to roo m 1 06 to addres s the tile is sue and Bradford ’ s inj ury so Green could focus on Christian ’ s girlfriend

. Bradford was taken to the Hospital ’ s emergency department , and a CT scan reve al ed that her C7 vertebra w as f ractured. Va n Valkenburg cleaned up the til e debris and noted that the tile was wet and that the floor w here the tile had fallen a lso was wet. Van Va l kenb u rg reported the4

inci dent to the Hosp it al ’ s maintenance department. Two hours afte r the incident, Bradford o verhear d a “ maintenance man ” tell “ a s upervisor of sorts ” that “ there had been a le a k [on] the floor above , ” which had “ happened earlier that day. ” Maintenance workers later determined that con densat ion from the f

loor above , where

a n air

- c onditio ning unit was located , had leaked d own and s o aked the ceiling tile in room 106 : There was an area where a cold pipe was exposed to wet h ot air, and basically . . . it ’ s condensing the water out of the ho t wet air on the cold s u rface

. . . .

. . . .

. . . [ T ] he r e is an air handler right ab ove [ room 106]. And there was actually a roof drain in the floor. . . . And the condensate from the air ha n dler actually fit into the drain, and t h er e ’ s an air gap between t he drain and the c ondensate line, and as it overfl owed over the years there were evident ly

- - Where the floor drain is in the concrete there ’ s a grout . . . around i t , but that g ave way over a period of time and either had like l ittle small fissures in it or cracks . . . t hat drained down throu gh the con crete and then ran who knows wh ere. You know, water will go to the lowest point it can.

B. P ROCEDURAL B ACKGROUND Bradford filed suit against the Hospi tal and raised claims for premises liabi lity, negligence, and gros s negligence

. R e garding premis es liabi lity , Brad ford alleged that the Hospi tal had actual knowledg e of the danger ous condition and failed to make the

con dition safe or war n her of it. Alternatively, she alleged t hat the Hospital had
const ructi ve knowledge of the dangerous condition

.5

The Hospital moved for a traditional and no

- evidence summary judgm ent arguing tha t because B radford was a licensee , not a n invitee, she had to raise a genuine issue of mater ial fact showin g that the Hospital had actua l knowledge of the dangerou s cond ition. See Tex. R. Civ. P. 166 a(b)

– (c), (i). Th e Hospital assert ed tha t Bradford fail ed to do so because the Hospital did not actually know before the ceiling tile f ell in roo m 106 that it had been s aturated with water from the air

- condi t ioning unit

. It further argued that her gross
- negligence and neg ligen ce claims should

s imilarly be di s missed beca use her in jury arose from a premi ses cond ition ; thus, she was barred from recasting her premises

- liab ility claim as a negligenc e
- based claim

. Bradford responded and argued that the summary

- judgment evi den ce raised material f act is sues that sh e was an invitee and that the Hos pital had both actual and constructive knowl edge of the dan gerous condition. In its r eply, filed the day before the summary
- judgm ent hearing, the Hospital argued that ev en if B radford were considered to be a n invitee, s he failed to proffer summa ry
- judgment eviden ce raising a fact issue that the Hosp ital had constructi ve knowledge of the cond ition

. The Hospital attached to its reply a “ demonstrative exhibit , ” which was a drawing of the labor

- and

- delivery depa rtment allegedl y showing that the air

- conditioning un it above room 106 did not “ service[] ” other labor

- and

- deliver y department areas on the first floor

. After a nonevi dentiary hearing , t he tri al court granted summary judgment in f avor of the Ho spital an d di smiss ed B ra dford ’ s claims. Bradford appeals the sum mary6

judgment , arg uing in a si ngle issue that she raised genuine, mat erial fact issues rega rding her status when she was at the H ospital and r egarding the Hospital ’ s actual

or c onst ructive knowledge o f the dangerous condition

. She does n ot attack the dismis sa l of he r negligence and g ross
- ne gligence cl aim s .

II. PRO PRIETY OF SUMMARY JUDGME NT A. S UMMARY -

J UDGMENT S TANDARD S OF R EV I EW We review the trial court ’ s summary judgment de novo

. First United Pen tecostal Chu rch of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017 )

. I n our review, we examine the entire recor d in the light most fa vorable to Bradford , indulging every reasonable in ference and resolving any doubts in her fav or . See id. ; 20801, In c. v. Parker , 2 49 S .W.3d 392, 399 (Tex. 200 8). We co nsider all groun ds presented to th e trial court and preserved on appeal. Se e Provident L i fe & Accident I

n s. Co. v. Knott

, 128 S.W.3d 211, 215

– 16 (Tex. 2003). To prevail on a trad itional motion for summ ary judgment, t he Hospital must have establ ish ed t hat there was no ge nuine issue of mat erial fact and that it was entitled to judgment as a matter of l aw. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fi elding , 289 S.W.3 d 844, 848 (Tex. 2009 ). Under Rule 166a(i), the Ho spita l , as the party wit hout the burden of proof, was entitled to move for summary judgment on the ground that no evidence support ed a specified, essential element of Bradford ’ s premises

- l iab i l ity claim. See Te x . R. Civ. P. 1 66a(i) & 1997 cmt

. ; First Unit

ed Pe n t e costal , 514 S.W.3d at 219 ; Timpte In dus., Inc. v. Gish ,7

286 S.W.3d 306, 310 (Tex. 2009). Unless Bradford produce d more than a scintilla of summary
- judgme nt evidence raising a genu ine issue of material f act , the court was required to grant the moti on. Se e Tex. R. Civ. P. 1 66a(i) & 1997 cmt. ; Smith v. O ’ Donnell , 288 S.W.3d 41 7, 424 (Tex. 2009); Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). Although the Ho spita l moved for both a trad itional and a n o - evidence summary judgment , we ge n er ally are to revi ew the ruling on the no
- evi dence motion first. See First United Pentecostal , 514 S.W. 3d at 21 9

. I f Bradford failed to meet her burden in response to the Hospital ’ s no
- evidence motion , a review of the r uling on the traditional motion be c omes moot. Id. Her e, ho we ver, our review wil l be more concise if we consider the grounds raised by the Hospital, whe ther in its no

- evidence or traditional motion, to determine wheth er the p roffered summar y - judgment evid ence raised a genuine , material fa c t issue on the chall enged premises

- liability

e lement s . See Litt

leton v. Nationstar Mor

tg. L.L.C. , No. 02

- 19

- 00238

- CV, 2020 WL 1949623, at *4 (

Tex. App.

— Fort Worth Apr. 23, 2020, pet. denied) (mem. op.) ; se e a lso Tex. R. Civ. P. 166a(c), (i). B. P REMI S E S L IABILITY 1. Eleme nts A p remises

- liabi li ty action is brought by someone who claims to have been i njured by a condition of property. See Occidental Chem. Corp. v. Jenkins , 478 S.W. 3d 640, 644 (Tex. 2016 )

. To establish a premises

- li ability claim, B ra df o rd had to show :8

(1 ) the Hospital had the requisite knowledge of a cond ition on the premises , (2) the condition pose d an unreasonable ris k of harm, (3) the Ho spital did not exercise

r easonable care to reduc e or eliminate the risk, and (4) the Hospital ’ s f a ilure to use such care proximately c aused Bradford ’ s injuries. See K ee tch v. Kr oger Co. , 845 S.W.2d 262, 264 (Tex. 1992) (op. on reh ’ g) ; see also United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 471 (Te x. 2017). R e ga rding the first element, the lev el of the Hospital ’ s required knowledge of the c ondition

— actual or constru ctive

— that Bradford had to establish depend ed on B r a dford ’ s status , in relationship to the property, at the ti me and place of injury. See Del Lago Pa rtners, Inc. v. Smith , 307 S.W.3 d 7 62, 767 (Tex. 2010); W. Invs., Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005 ) ; M ayer v. Willow brook Pl

aza L.P. , 278 S.W. 3d 901, 915 (Tex. App.

— Houston [14th Dist.] 2009, no pet.). A person injured as a re su lt of a premi ses condition is classified as a n i nvit ee, a licensee, or a trespasser . 1 See Wilson v. Nw. Tex. Healthcare Sys. , 576 S.W.3d 844, 850 (Tex . App.

— Amarillo 20 19, no pet.). If Bradford was a n in vitee, she must have estab lish ed th at the Hospita l had actual or constructive knowledge of the c on d ition ; if she was a licensee, she must have show n that th e H ospital had actual knowledge o f the condition

. See Henk el v. N o rman , 4 41 S.W.3d 249 , 2 51

– 52 (Tex. 2014) (per curiam) ; Corb in v. Safeway Stores, Inc. , 648 S.W. 2d 292, 295 (Tex. 1983); S t ate v. Tennison , 509 S

. W.2d 560, 562 (Tex. 1974);

1 N o party argu es that Bradford was a trespasser.9

Vernon v. Dall./Fort Worth Int ’ l Airport Bd. , No. 02

- 16

- 00488

- C V, 2 017 WL 2979828, at *2 (Tex. App.

— Fort Wo rth July 13, 2017, no pet.) (mem. op .)

. I n other words , the duty owed t o an invite e, licensee, or trespasser va ries in ve r se ly with the level of knowledge required by th e premises ow ner . See generally Mellon Mor tg. Co. v. H

o lder , 5 S.W.3 d 654, 660 (Tex. 1 999) (Enoch, J., concurring) (explai ning level of duty owed based on pla in tiff

’ s status )

. Bradford and the Hospital fo cu s a significant portion of their briefing on Bradford ’ s status at the time she was injured

. Bu t w e need not wade into th is issue if she failed to raise a genuine issue of material fact regarding the Ho sp it a l ’ s actual or constructive knowledge of the con dition at issue. 2 See Tex. R. App. P. 47.1 ; Vernon , 2017 WL 2979828, at *2 ; cf

. Michol O ’ Connor, O ’

Co nn or ’ s Texas Causes of Action ch. 23

- A , § 3 (20 21 ) ( “ The duties are cum ulative, so that the duty the pos se s so r owes to

2 We disagree, however , with the Hosp ital ’ s as sertion tha t “ Texas law is clear that Bradford was a lice nsee at the time of the incident. ” While some cases ind ic a te that a h ospital visitor may be clas sified as a licensee, see, e.g. , Lujan v. Methodist Hosp. , No. 01

- 20

- 00158

- CV, 2020 W L 7702185, at *3 (Tex. App.

— Houston [1st Dist.] Dec. 29, 2020, pet. filed) (mem. op .); Nw. Tex. Healthcare , 576 S.W.3d at 850; Won g v . Tenet Hosps. Ltd. , 181 S.W.3d 532, 5 38 (Tex. App.

— El Paso 2005, no pet.), a prem ises

- liab il

ity plaintiff

’ s st atus is a fa ct

- intensive , multi

- factor i nquiry that renders fac tually dissimilar cases , such as these, unpersuasive. Here, unlike many of the c a ses relied on by the Hospital, Bradfor d proffered summary

- ju dgment ev idence a rguably raising a fact issu e as to her status at the time of the incident

. See, e.g. , Smith v. Brittain , No. 12

- 19

- 0039 7

- CV, 2020 WL 6164983, at *3

– 4 (Tex. App.

— Tyler O ct. 21, 2 0 20, no pet.) (mem. op.) ; City of Fort Worth v. Posey , 593 S. W.3d 924, 930

– 31 (Tex. App.

— Fort Worth 2020, no pet.) ; cf. McCl ure v. Rich , 95 S.W.3d 620, 625

– 26 (Tex. App.

— Dallas 2002, no pet.) (holdi ng social guest could be considered an invitee based on su m mary
- judgment evidence showing that gu est had been invited t o premise s to assist in an endeavor that served the possessor ’ s economic interests)

.10

invitees includes the duties owed to licensees and tre spassers . ” ). Accordingly, we will first determine whethe r Bradford raised a genuin e issue of material fact that the Hosp ital had actual or construct ive k nowledge of the condition

. 2. Th e H os pital ’ s K

nowledge a. Actual A ctual knowledge “ requires knowl edge that the dangerous condition existed a t
t he t ime of the accident , ” which i s more t han knowledge “ of th e possibility that a dangerous condition c[ould] develop over time. ” City of Cors ic a na v. Stewart

, 249 S.W.3d 412, 414

– 15 (Tex. 2008) (per curiam). In short, actual knowledge is not hypothet ical

. See City of Denton v. Paper , 376 S.W. 3d 762, 767 (Tex. 2012) (per curiam); Un iv. of Tex. at Austin v. Haye s , 327 S.W. 3d 113, 117 (Tex. 2010 ) ( pe r curiam)

.

“ [C]ourts generally consider whether the premises owner has received reports of pr ior injurie s or r eports of the potent ial danger present ed by the condition. ” Univ. of Tex.

– Pan Am. v. Aguilar

, 251 S.W.3d 5 11 , 513 (Te x. 2008) (per curiam). C ir cumst antial evidence can establish actual knowledge but only if the evidence either directly or by

reas on able inference supports su ch a conclusion. See Stewart , 249 S.W.3d at 415. The type o f air

- conditioning system installed at the Hospital would c om m on ly have water splas h in g from the drain pipe and around the floor drain ; both the drain pipe and the f

loor drain had been installed “ before 2001

. ” This system , located on the second floor in a mechanical room , is comp r ised of a large u n i t that serves the f irst

- floor labor

- and

- delivery department. In fact, anti

- microb ial ce i ling tiles in the11

labor

- and

- delivery department , which had been in stalled in 2005, had previously

re quired replac ement even though they typically w o u l d n o t h a v e s h o w n s t a i n s . In Septe mb er 2016, after a ce il ing tile had to be replaced in the “ anter room ” in room 106 , a pipe had to be insulated because the “ce iling [was] leaking. ” In May 2017, “soggy wet ” ceiling ti le s in a labor

- and

- delivery ope ratin g room had to be replaced after a “d ra in pan issue ” caused ceiling “ leaks. ” In J uly 2017, a ceilin g tile in the

“ Ante room ” of room 104 i n the labor

- and

- delivery department was “stained/broken ” and had to be r e p laced. Eigh t days before Bradford ’s injury, water dripping from the ceiling of a housekeeping closet , located ou t side of a labor

- a nd

delivery operating room , was discovered t o be comin g from the condensation drain of the air

- conditioning u n i t located abo ve the c eiling

. Five days before Bradford ’ s injury, ceiling tiles in a labor

- and

- d elivery recovery room were wet, with “ wate r dripping to [the] floor , ” which was “ coming from the condensation drain f r o m A/C unit a bove. ” 3 That same day, a shi ft report, written by a maintenance technician, noted that a

3 Six days after the occur rence at issue , the ceil i ng in room 106 again leaked due to “ the CSU air

- han dlin g u n it drain over flowing onto the floor ”

— the same problem that h ad occur red on June 13, 2018. This in cident , of course, is no t directly relevant to the Ho spital ’ s prior actual knowledge of the conditi on that led to Bradford ’ s injur y; however, it circu msta nt

i ally shows that conden sation

– drainage issues , resulting in le ak s on t he first floor, wer e co mmon in the summer months

.12

“ humidifier ” was “ leaking into ve nt s and onto the floor of the recovery room ” in the labor

- and

- delivery department. 4 The Hospital contends that becau se only one of these incide nts involved room 1 06 an d because there was no indication that , on June 13 , 2018, there was a water issue in room 106 involving t he exact ti le that f ell on Br adford ’ s n eck , Bradford ’ s summary
- judgment evidence does not raise a fact i s sue that the Hospit al had any knowledge of the condi tion leadi ng to Bradford ’ s injury. However, c ircumstantial

e vidence a nd prior rep or ts o f the potential danger created by the condition can raise a fact issue regarding ac tual kn ow l edge

. Aguilar

, 251 S.W.3d at 514. Here, there were prior rep orts that water from the second floor was leakin g into th e labor

- and

- deliv ery department , wh ich w ould allow a reasonable inference that the Hosp ital had actual knowledge of the condition lead in g to Bradford ’ s injury

. Indeed, the Ho spi tal ’s director of engineering stated that when condensati on would dra in down, it would run “who knows wher e, ” but to “ the lowest point it can. ” The Hospital also points to its demonst rative exhibit, wh i ch i t attached to its summary
- judgment r eply , and argues th is drawing shows that the other labor

- and

delivery rooms were “ service d ” by di fferent air

- conditioning units , negating actual knowledge of the condition leading to Bradford ’ s injury

. How ever, this summary

4 The Hospital seems to argue th e two incidents on J une 8 were the same; however, the shift report notes a different work

- order number than the number as si g ned to the condensation

- drain issue.13

judgment evidence was filed the day before the summary

- judgment hearing

— to o late to be considered by the trial court in ruling on the Hospital ’ s m otion

— and th er e is no affir mative indication in the record that the trial cour t g ranted leave to file or actually considered the late

- filed , demonstrative e xhibit

. 5 See Tex. R. Civ. P. 166a(c); B.C. v. Steak N Shake Operations, I nc. , 598 S.W.3d 256, 259

– 60 (Tex. 2020 ) (per curiam) ; Be nchmark Bank v. Crowder , 919 S.W.2d 657, 663 (Tex. 1996)

. Fu rt h er, th e Hospital raised its argument that the prior ce iling leaks did not provide actual no tice of the dangerous condition and involved different air

- con ditioning units for the first time in its reply. Th is a ctual

- notice argume nt was raised too late to be considered as a ground sup porting th e trial court ’ s s ummary judgment

. See Reliance Ins. Co. v. Hib don , 333 S.W.3d 364, 378 (Tex. App.

— Hou ston [14th Dist.] 2011, pet. denied) (op. on reh ’ g); RR Publ ’

n & P rod. Co. v. Lewisville IS D , 917 S.W. 2d 472, 473

– 74 (Tex. App.

— Fort Worth 1996 , no pet.)

. In a ny event, t he Hospi tal ’ s arguments that the prior leaks were not tied to the air

- conditioni ng unit above room 106 draw too fine a line. See Lower Neches Valley A uth. v. Murphy , 536 S.W .2d 561, 56 3 (Tex. 19 76) ( “ The Court of Civil Appeals misapplied the [k no w

ledge] exception in holding that the dangerous condition was not the presence of h u mps o f clay in the area of Wen dell ’ s [canal] dive . . . but was the exact hu mp that Wendell struck. ” )

. Whethe r the Hosp ital ’ s knowledge that water

5 At the hearing, the trial court stated that it had read the Hospital ’ s repl y but did not me ntion that it conside red the late

- filed , de monstrative evide nce.14

from the floor above w as lea k i ng down to the labor

- and

- delivery rooms below constituted actual knowledge that wat er was leaking specific ally into room 106 was a distinction for the fact

- finder to resolve

. S ee Capitol Life Ins. Co. v. Newman , No. 05

- 16

- 01476

- CV, 2018 WL 4356573, at *3 (Tex. App.

— D al l as Sept. 13, 2018, pet. deni ed) (mem. op. on r eh ’ g) ( “ Summary judgme nt is r arely proper when the cause involves an issue inherently for the fact

- finder. . . . ” ); Murray v. Cadle Co. , 257 S.W.3d 291, 302 (Tex. App.

— Dallas 2008, pet. denied) (op. on reh ’ g) ( “ Issues of k no w ledge and intent

are r arely appr opriate for summary j udgment. ” ); c f. Scott v. Harris , 550 U.S. 372, 380 (2007) ( “ When opposing parties tell two dif ferent stor ies, one of which is blatantly
cont radicted by the record, s o that no reasonable jury could bel i e v e it, a court should not ado pt that version of the fa cts for pu rposes of ruling on a motion for summary judgment. ” ). In other words, the circumsta ntial evid ence of leaks into oth er rooms of th e first

- floor labor

- and

- delivery department, some of which t he Hospital was act ually

a ware involve d an air

- condition ing unit on the floor above , would a llow a fact

- fin der
to reasonably infer th is fact in favor o f Bradford. A nd a t the summary

- judgment s tage , Bradf ord need ed only to raise a genuine issue of mater ia l fact that the Hospital had actual kno wledge of the le aking problems in the labor

- a nd

- delivery department at the time Bradford was injured. T he Ho spital argues that the summary

- judgment eviden ce established that the condensation issue could not have be en discovered before Bradford was injured

. However, Brad for d proffered competing ev

idence that circumstantially support ed a finding that the15

Hospital had actual knowledge that the water f rom an air

- condition ing un it had previously le ak ed into the ceil ing o f the labor

- and

- deliver y departmen t, wh ich would allow a fact

- finder to reasonabl y infer that the Hospital had act ual knowledge of the condition lea ding to Bradford ’ s inj ury. See Morales v. Alc oa World Alumina L.L.C. , No. 13

- 17

- 00101

- CV, 2018 WL 2252901 , a t *1 1 (Tex. App.

— Corpus Christi

– Edinbu rg 2 018, pet. den ied) (mem. op .) ; Christus Heal th Se. Tex. v. Wilson , 305 S.W.3d 392, 397 (Tex. App.

— Eastland 2010, no pet.); c f. Aguilar , 251 S.W.3d at 51 3 (holding premises owner did not have actual knowledge of c on d i tion because no evidence proffered of prior injurie s o r reports of po tential danger presented by condition); City of Dall. v. Freeman , N o . 05

- 1 8

- 0 0961

- CV, 2019 WL 3214152, at *1 & n.2 (Tex. Ap p.
— Dallas July 17, 2019, no pet.) (mem. op.) (ho lding no act ua l knowledge because premises owner had received no co mpl aints about con d ition f or two years before accident); Rice Food M

kt. , Inc. v. Hicks

, 111 S.W .3d 610, 613 (Tex. App.

— Houston [1st Dist.] 20 03, pet. denied) (holding plaintiff failed to conclusively e st a blish actual knowledge because there w as no evidence of similar prior inci dent)

. In other words, the competing summary
- judgment evidence allowed a fact

- finder to reasonably infer actual kno wle dge and find that fact in favor of Brad ford ; thus, B radford ra i sed a genuine issue of material fact

. See Rayon v. Ene rgy Specialties, Inc. , 121 S.W.3d 7 , 11

– 12 (Tex. App.

— Fort Worth 2002, no pet.) ; cf. Mass M k tg. Ltd. v. Durbin , No. 04

- 09

- 00697

- CV, 2010 W L 4109260, at *3

– 4 (T ex. App.

— San Anton io Oct. 20, 2010, pet

. d enied) ( “We hold the evidence supports the reaso n ab le i nference that Mass16

Mar keting had kn owledge small crates create a tripping hazard

. . . . Any inconsistencies in the e vidence were apparent ly resolved in Durbi n ’s favor by the j ury. ”)

. b. Construc ti v e Constru ctive knowledge “ can be esta blished by f acts or inferences that a dangerous cond ition could de velop over time

. ” Stewart , 249 S.W.3d at 4 15. To do so, a plaintiff must show that the condition had exis t ed l ong enough for the owner to have had a r easonable opportunity to discover it i n the exerci se of ordinary care. See Wal

– Mart Store s, Inc. v. Reece , 81 S.W.3d 812, 814, 816 (Tex. 2002) ; CM H Homes, Inc. v. Daenen , 15 S.W.3d 97, 102

– 03 (Tex. 2000). Because w e ha ve fou nd a gen uine fact issue reg ar d ing the Hospital ’ s actual knowledge, t hat evidence nece ssarily raises a fact issue as to c onstruct

ive knowledge. Even so, evi dence of the prior in stances of water leaking from an air

- conditio ning unit on the second flo or to the firs t floor ’ s labor

and

- d e livery department raised a gen uine fac t issue as to the Hospital ’ s constructive knowledge. See Posey , 593 S.W.3d at 931

– 32. III. CONC LUSION View ing the summary

- judgment evidence in the light most favorable to B rad ford, we con clude that she proffered mo r e than a s cinti lla of summary

- judgme nt evidence and rais ed a genuine issue of material fact as to the Hos pital ’s actual and constructive knowledge of the premis es condition leading to her inj ur y. We sustain Brad ford ’ s ap pellate i ssue. Accordingly, we re v erse that portion of the tri al court ’s17

order granting su mmary judgment as to Bradford ’ s premises

- liability claim and remand th is c as e to the trial court for further proceedings on that claim

. See Tex. R. App. P. 43.2(d), 43. 3(a). However, we affirm th e s ummary judgment on and dismissal of Br adford ’s negligenc e and gross

- ne gligence claims , which she does not challenge on appe al

. See Tex. R. App P. 43.2(a) ; Little v. Delta Steel, Inc. , 409 S.W. 3d 704, 722

– 23 (Tex. App.

— Fort Worth 2013, no pet.).
/s/ Brian Walker Bria n W alker Justi ce Delivered: May 6, 2021