NO. 12-18-00220-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FLOR REYES,

APPELLANT

V.

BROOKSHIRE GROCERY COMPANY,

APPELLEE

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§

§

APPEAL FROM THE

COUNTY COURT AT LAW

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Flor Reyes appeals the trial court’s summary judgment rendered in favor of Appellee 

Brookshire Grocery Company (BGC). In two issues, Reyes argues that the trial court erred in 

granting BGC’s motion for summary judgment. We affirm.

BACKGROUND

On June 20, 2015, between 4:15 p.m. and 4:30 p.m., Reyes entered a grocery store owned 

by BGC to shop with her family. While in the store, she began searching for a bottle of vitamin 

water to purchase. As she walked through the store between the checkout area and the store aisles, 

Reyes passed in front of an aisle end cap refrigerated display case. In front of the display case 

stood a three-and-one-half foot tall, four-sided, yellow sign, which read “CAUTION CUIDADO | 

WET FLOOR PISO MOJADO.”1

 Almost immediately after she passed the sign, Reyes entered 

 1 Earlier that day, BGC employees discovered a puddle of water, which resulted from a customer spill, in the 

entry to the aisle on the right side of the display case. They sought to dry the area with paper towels and placed the 

yellow “Caution” sign. That afternoon, approximately thirty minutes before Reyes’s arrival, another patron slipped 

and fell in the aisle to the left of the refrigerated display case where Reyes later fell. BGC employees sought to clean 

up that area with paper towels and moved the yellow “Caution” sign to an area in front of the refrigerated display case, 

where it remained.
2

the aisle adjacent to the left side of the display case, slipped, fell, and sustained an injury, which 

required the attendance of emergency medical personnel.

Thereafter, Reyes filed the instant suit, in which she alleged that BGC was liable to her 

under theories including negligence and premises liability. BGC filed a traditional motion for 

summary judgment, to which Reyes responded. Ultimately, the trial court granted BGC’s motion 

for summary judgment, and this appeal followed.

SUMMARY JUDGMENT

In two issues, Reyes argues that the trial court erred in granting BGC’s motion for summary 

judgment.2

Standard of Review

In reviewing a traditional motion for summary judgment,3 we must apply the standards 

established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985), which are 

as follows:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, 

evidence favorable to the [nonmovant] will be taken as true.

(3) Every reasonable inference must be indulged in favor of the [nonmovant] and any doubts 

resolved in its favor.

Nixon, 690 S.W.2d at 548–49; Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. 

App.–Tyler 2008, pet. denied). A defendant moving for summary judgment must either negate at 

least one essential element of the nonmovant’s cause of action or prove all essential elements of 

an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 

1995). We are not required to ascertain the credibility of affiants or to determine the weight of 

evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Zimmer, 

 2 Reyes’s first issue pertains to the admissibility of an exhibit containing video evidence. Reyes initially 

contended that this exhibit was not available to the trial court at the time BGC’s motion was submitted. In her reply 

brief, Reyes informed this court that she was withdrawing this issue. As such, we do not address it.

3 See TEX. R. CIV. P. 166a(c). 
3

267 S.W.3d at 508. The only question is whether an issue of material fact is presented. See id.; 

see also TEX. R. CIV. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the 

burden to respond to the motion for summary judgment and present to the trial court any issues 

that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin 

Authority, 589 S.W.2d 671, 678–79 (Tex. 1979). Summary judgment should be affirmed on 

appeal if any of the grounds presented in the motion are meritorious. See Carr v. Brasher, 776 

S.W.2d 567, 569 (Tex.1989).

Overview of the Law

Depending on the circumstances, a person injured on another’s property may have either a 

negligence claim or a premises liability claim against the property owner. Occidental Chem. Corp. 

v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 

1992). When the injury is the result of a contemporaneous, negligent activity on the property, 

ordinary negligence principles apply. Jenkins, 478 S.W.3d at 644. When the injury is the result 

of the property’s condition rather than an activity, premises liability principles apply. H.E. Butt 

Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992). Although premises liability is itself a 

branch of negligence law, it is a “special form” with different elements that define a property owner 

or occupant’s duty with respect to those who enter the property. W. Invs., Inc. v. Urena, 162 

S.W.3d 547, 550 (Tex. 2005). Under premises liability principles, a property owner generally 

owes those invited onto the property a duty to make the premises safe or to warn of dangerous 

conditions as reasonably prudent under the circumstances. Jenkins, 478 S.W.3d at 644; Corbin 

v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Smith v. Henger, 226 S.W.2d 425, 431 

(Tex. 1950). 

Negligent Activity

In part of her second issue, Reyes argues that the trial court erred in granting summary 

judgment in favor of BGC on her negligent activity cause of action.

A plaintiff cannot recover under a negligent activity theory unless the evidence 

demonstrates that her injury was caused by or was a contemporaneous result of the negligent 

activity itself, rather than a condition created by the negligent activity. See Keetch, 845 S.W.2d at 

264; Brooks v. PRH Investments, Inc., 303 S.W.3d 920, 923–24 (Tex. App.–Texarkana 2010, no 

pet.); Kroger v. Persley, 261 S.W.3d 316, 320 (Tex. App.–Houston [1st Dist.] 2008, no pet.); 
4

Lucas v. Titus County Hosp. Dist./Titus County Mem’l Hosp., 964 S.W.2d 144, 153 (Tex. App.–

Texarkana 1998), pet. denied, 988 S.W.2d 740 (Tex.1998). The negligent activity theory of 

liability is applicable only where the evidence shows that the injuries were directly related to the 

activity itself. Keetch, 845 S.W.2d at 264. If the injury was caused by a condition created by the 

activity rather than the activity itself, a plaintiff is limited to a premises defect theory of liability. 

Lucas, 964 S.W.2d at 153.

The Texas Supreme Court’s decision in Keetch guides us in determining what evidence is 

needed to establish that an injury was the contemporaneous result of the negligent activity itself, 

rather than a condition created by the negligent activity. Keetch, 845 S.W.2d at 264. In Keetch, 

the plaintiff slipped and fell about thirty minutes after a Kroger employee sprayed a chemical 

substance on plants in the floral section of the store. See id. The supreme court rejected the 

plaintiff’s contention that Kroger’s employees were conducting a negligent activity because the 

activity––spraying plants––was not “ongoing” at the time of the plaintiff’s injury. See id. Thus, 

while the plaintiff “may have been injured by a condition created by the spraying, . . . she was not 

injured by the activity of spraying.” Id. In holding that underlying facts amounted to a premises 

liability case rather than a negligent activity case, the court noted that “[a]t some point, almost 

every artificial condition can be said to have been created by an activity.” Id.

Similarly, in Stanley Stores v. Veazey, the Beaumont Court of Appeals applied the Keetch

analysis to another slip and fall case where the plaintiff alleged a negligent activity. See Stanley 

Stores, Inc. v. Veazey, 838 S.W.2d 884, 885–86 (Tex. App.–Beaumont 1992, writ denied). In that 

case, while shopping, the plaintiff slipped on a clear liquid and fell to the floor. See id. at 885. 

The store manager found “a small puddle of water and a paper cup” in the area where the plaintiff 

slipped. See id. The cup was a small sample-type, similar to those being used at that time in 

promotion of a Pepsi–Cola display. See id. at 886. The Pepsi–Cola display was located near the 

front entrance of the store, away from the area where the plaintiff fell. See id. Applying the 

holding in Keetch, the court held that the facts were insufficient to support a negligent activity 

claim. See id. The court explained that even assuming the evidence supported that the liquid 

which caused the fall originated from the Pepsi display, which was an ongoing activity, the slip 

and fall, which occurred in another part of the store still amounted to a condition created by the 

activity. Id.
5

Likewise, in Persley, the court of appeals reversed the trial court and held that there was 

no evidence of negligent activity when the plaintiff slipped and fell by stepping in water that was 

allegedly dripped onto the floor when a store employee transported frozen food from pallets to the 

frozen food cases. See Persley, 261 S.W.3d at 320–21. The court noted that there was no ongoing 

activity in the area where the plaintiff fell at the time the fall occurred and that the plaintiff fell at 

least fifteen minutes after the employee left the area; thus there was no connection between the 

injury and the stocking of the frozen foods section that would lead to a conclusion that the 

plaintiff’s injury occurred as a contemporaneous result of a negligent activity. Id. at 320–21.

The facts of the instant case are similar to those in Keetch, Stanley Stores, and Persley in 

that the alleged negligent activities—failed attempts to prevent a display case from leaking and 

mopping up water puddles—were not ongoing at the time when and place where Reyes fell. BGC 

Assistant Manager Chris Jolee stated that a BGC employee tightened the drain plug on the display 

case and another employee used paper towels to mop up the spill. In the video, BGC employees 

can be seen mopping up a spill with paper towels in the area where Reyes ultimately fell and 

placing the warning sign approximately thirty minutes before the Reyes incident. No further BGC 

employee activity occurred in that area within that thirty-minute time span. Thus, there is no 

evidence that any alleged negligent activity itself caused Reyes’s injuries or that her fall was 

contemporaneous with BGC employees’ attempted drain plug tightening or floor clean-up efforts. 

Rather, the evidence indicates that Reyes slipped on a small puddle––a condition caused by some 

noncontemporaneous activity. Therefore, we hold that the trial court did not err in granting 

summary judgment on Reyes’s negligent activity cause of action. 

Premises Liability

As part of her second issue, Reyes further argues that the trial court erred in granting 

summary judgment in favor of BGC on her premises liability cause of action.

“Premises owners and occupiers owe a duty to keep their premises safe for invitees against 

known conditions that pose unreasonable risks of harm.” TXI Operations, L.P. v. Perry, 278 

S.W.3d 763, 764 (Tex. 2009); Golden Corral Corp. v. Trigg, 443 S.W.3d 515, 518 (Tex. App.—

Beaumont 2014, no pet.). “This duty is discharged by warning the invitee of unreasonable risks 

of harm either known to the owner or which would be known to him by reasonable inspection or 

by making the premises reasonably safe.” Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 
6

(Tex. App.–Houston [14th Dist.] 2002, pet. denied); see also State v. Williams, 940 S.W.2d 583, 

584 (Tex. 1996). 

When considering whether a warning is adequate, it must be considered “in context of the 

totality of the circumstances.” Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 2014); Sanchez v. 

Stripes LLC, 523 S.W.3d 810, 813 (Tex. App.–San Antonio 2017, pet. denied); see Del Lago 

Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). “[A] property owner’s warning to an 

invitee of an unreasonably dangerous condition is adequate if, given the totality of the surrounding 

circumstances, the warning identifies and communicates the existence of the condition in a manner 

that a reasonable person would perceive and understand.” Henkel, 441 S.W.3d at 253; see Perry, 

278 S.W.3d at 765. “If the evidence conclusively establishes that the property owner adequately 

warned the injured party of the condition, then the property owner was not negligent as a matter 

of law.” Henkel, 441 S.W.3d at 252; accord Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 204 

(Tex. 2015) (“[A] landowner who provides an adequate warning acts reasonably as a matter of 

law.”).

In the instant case, it is undisputed that Reyes was BGC’s invitee. Thus, BGC owed her a 

duty to keep its premises safe against known conditions that pose unreasonable risks of harm. See 

Perry, 278 S.W.3d at 764. BGC could discharge its duty by warning Reyes of unreasonable risks 

of harm known to it, or which would be known to it by reasonable inspection or by making the 

premises reasonably safe. See Bean, 77 S.W.3d at 369.

In Golden Corral, the plaintiff slipped on a tile floor near a tall, yellow sign that contained 

language warning of a wet floor. See Golden Corral, 443 S.W.3d at 517. The court held that there 

was no dispute that Golden Corral warned of the condition because surveillance video conclusively 

established that the tall yellow sign was present in the area when the plaintiff fell. See id. at 518. 

The court noted that the plaintiff testified that had she seen the sign, “[i]t would have warned [her] 

that there was a problem in the area where the cone was located.” Id. Moreover, the court stated 

that the evidence at trial did not show that the risk was extreme since it did not show that before 

the plaintiff fell, other Golden Corral customers or employees had fallen in the same area, and 

there was no evidence showing that the floor was more slippery than might be expected from a 

wet floor. See id. Lastly, the court set forth that the surveillance videos admitted into evidence 

show a significant number of the restaurant’s customers walking in the area near the sign without 

incident during a twenty-minute period before the plaintiff fell. See id.
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Here, the evidence is undisputed that BGC undertook efforts to dry the area where Reyes 

later fell with paper towels and placed a three-and-one-half foot tall, four-sided, yellow sign, which 

warned of the wet floor in both English and Spanish. The evidence is undisputed that the sign was 

placed within three to five feet of the area where Reyes fell and that Reyes walked immediately in 

front of the sign before she fell after taking only a few steps more. Much like the evidence in 

Golden Corral, the evidence here reflects that had Reyes seen the sign, she would have understood 

the message it conveyed. And while the record demonstrates that another customer fell in the same 

area as Reyes, the video evidence conclusively establishes that, almost immediately after that 

incident, BGC employees cleaned the area with paper towels and placed the warning sign in the 

location where it stood when Reyes walked past it. During the approximately thirty-minute 

timeframe between BGC employees’ placing the warning sign and Reyes’s fall, the video evidence 

shows approximately forty other instances in which BGC patrons walk through the same area 

without incident.

After carefully reviewing the record, we conclude that the evidence conclusively 

establishes that BGC discharged its duty to Reyes because it adequately warned of the wet floor. 

See id. at 520. Therefore, we hold that the trial court did not err in granting BGC’s motion for 

summary judgment on Reyes’s premises liability claim.4 Reyes’s second issue is overruled.

DISPOSITION

Having overruled Reyes’s second issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 30, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 4 Because we have determined that the evidence conclusively establishes that BGC adequately warned of the 

danger, we need not consider Reyes’s arguments concerning whether BGC had actual or constructive knowledge of 

the danger. See TEX. R. APP. P. 47.1(a). 
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 30, 2019

NO. 12-18-00220-CV

FLOR REYES,

Appellant

V.

BROOKSHIRE GROCERY COMPANY,

Appellee

Appeal from the County Court at Law 

of Smith County, Texas (Tr.Ct.No. 66,862)

THIS CAUSE came to be heard on the oral arguments, appellate record and 

briefs filed herein, and the same being considered, it is the opinion of this court that there was no 

error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.