Melissa Fontenette-Mitchell v. Cinemark USA, Inc. D/B/A Discount Cinema 8
03-16-00201-CV
| Tex. App. | Nov 16, 2016Background
- On July 3, 2012, Melissa Fontenette-Mitchell slipped in a Cinemark theater on an allegedly wet, foreign substance and was injured.
- She sued Cinemark for premises liability; Cinemark moved for no-evidence summary judgment challenging notice (actual or constructive) of the hazard.
- Depositions: Fontenette-Mitchell testified only that she slipped on the substance and had no knowledge how long it had been there; Cinemark assistant manager Sukumaran testified he inspected theaters before the first showing and did not recall seeing any substance.
- The incident report contained no reference to a foreign substance on the floor.
- Fontenette-Mitchell argued the spill must have occurred either the prior business day, between cleaning and Sukumaran’s pre-opening inspection, or between that inspection and the showing — asserting those scenarios support constructive notice.
- The trial court granted Cinemark’s no-evidence summary judgment; the court of appeals affirmed, finding no evidence of the duration (temporal proof) of the hazard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cinemark had constructive knowledge of the foreign/wet substance on the floor | Fontenette-Mitchell: circumstantial inferences (timing scenarios) show the substance existed long enough that Cinemark or its cleaners should have discovered it | Cinemark: no evidence of how long the substance was on the floor, no witness observed it, no mention in incident report; thus no evidence of constructive notice | Court: No-evidence summary judgment affirmed — plaintiff failed to present temporal evidence required to raise a fact issue on constructive knowledge |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002) (time-notice rule; temporal evidence required to prove constructive notice)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (elements of premises-liability claim for invitees include actual or constructive knowledge)
- Gonzalez v. Wal-Mart Stores, Inc., 968 S.W.2d 934 (Tex. 1998) (circumstantial evidence supporting equally plausible contrary inferences is speculative and insufficient)
- Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (standard for reviewing no-evidence summary judgment)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (grounds for no-evidence summary judgment explained)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (when reviewing evidence, appellate courts credit evidence favorable to the nonmovant if reasonable jurors could)