Gerald Kostecka v. Smokey Mo's Franchise, LLC D/B/A Smokey Mo's BBQ, 03-15-00295-CV

On Oct. 12, 2010 Gerald Kostecka (plaintiff) fell at a Smokey Mo’s restaurant when a chair slid out as he reached for a salt shaker; he injured his left knee.
Immediately after the fall plaintiff alleges an employee (Aaron) told him the combination of the chair legs and the restaurant floor/paint created a dangerous condition causing chairs to move.
Plaintiff also alleges a second employee (Matthew) admitted the restaurant had been sold the wrong floor paint, required sanding/texturing in the kitchen, and that the condition endangered employees and customers.
Plaintiff filed a premises liability suit against Smokey Mo’s (defendant); defendant moved for no‑evidence summary judgment on challenged elements of the premises‑liability claim.
The trial court granted defendant’s no‑evidence motion, dismissing plaintiff’s claims; plaintiff appealed, arguing he produced more than a scintilla of evidence on each challenged element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in granting defendant’s no‑evidence summary judgment	Kostecka produced more than a scintilla via his affidavit and statements by defendant’s employees raising fact issues on all challenged elements	Defendant asserted Kostecka had no evidence on the challenged elements of premises liability	Trial court granted the no‑evidence summary judgment; appeal contends this was error
Knowledge/notice of dangerous condition (actual or constructive)	Employee admissions that the paint/floor and chair legs created a hazardous condition constitute party admissions raising fact issues on notice	Defendant argued plaintiff lacked evidence of actual or constructive knowledge	Trial court accepted defendant’s no‑evidence motion as to challenged elements (appellant disputes sufficiency of that ruling)
Breach, warning, and causation (failure to warn or make safe; proximate cause)	Plaintiff’s affidavit alleges defendant failed to warn or remedy despite knowledge, and that that breach proximately caused injury	Defendant argued plaintiff offered no evidence linking breach to injury or proving failure to warn/make safe	Trial court granted summary judgment; appellant asserts affidavit and admissions create more‑than‑scintilla evidence on breach and causation

Del Lago Partners v. Smith, 307 S.W.3d 762 (Tex. 2010) (lists elements of invitee/premises‑liability claim)
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (standard for defeating a no‑evidence summary judgment: more than a scintilla of evidence)
Adam Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex. 1972) (evidence that plaintiff was a customer supports invitee status)
Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex. 1975) (evidence of dangerous condition and foreseeability may create fact issues)
Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073 (Tex. 1941) (owner/possessor duties toward invitees)