Roy Pipkin of the Estate on Behalf of Bayon Shea Pipkin v. Kroger Texas LP
2012 Tex. App. LEXIS 7627
| Tex. App. | 2012Background
- Bayon Shea Pipkin slipped on a wet Kroger floor Jan. 10, 2009; minor Roman accompanied him.
- Shea Pipkin sued Kroger Mar. 3, 2010 for premises liability; he died Apr. 30, 2010; Roy Pipkin became executor.
- Kroger moved for summary judgment on March 8, 2011, asserting no unreasonably dangerous condition, no notice, and no failure to reduce risk; included Hamid Said affidavit.
- Estate responded May 10, 2011 with Said’s affidavit and Roy Pipkin affidavit; Kroger objected to the Dead Man’s Rule and to Roy’s assertion.
- May 11, 2011 hearing: court offered to allow supplement with Shea Pipkin’s son testimony; court deferred ruling.
- Final summary judgment granted Jun. 15, 2011; Estate sought reconsideration; appeal followed; court reversed and remanded on traditional motion grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Estate’s affidavit filings | Pipkins filed timely under court’s leave to supplement | Roman affidavit untimely/ improper per e-file order | Affidavit timely filed; e-file order invalid for timing impact; issues of competency addressed later. |
| Competency and personal knowledge of Roman Pipkin | Roman testified from personal knowledge of the store incident | Roman is a minor; not competent to testify | Roman competent; not per se barred due to age; affidavit based on personal knowledge. |
| Whether Kroger discharged duty or warned of unreasonably dangerous condition | Evidence shows wet floor and lack of warning; raises fact issue | Said said area was cleaned and sign placed; no current hazard | Material fact issue exists on notice and duty to warn or make safe. |
| No-evidence vs traditional summary judgment sufficiency | Roman/Said affidavits create fact issues defeating no-evidence SJ | Kroger evidence shows no duty breach as matter of law | Traditional SJ reversed; no-evidence SJ evidence likewise creates factual disputes; remand. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 814 (Tex. 2002) (notice elements for premises liability)
- Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006) (unreasonably dangerous condition standard)
- H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218 (Tex. 1999) (wet substance on floor can be unreasonably dangerous)
- City of San Antonio v. Rodriguez, 931 S.W.2d 535 (Tex. 1996) (direction on when a floor condition is unreasonably dangerous)
- Seideneck v. Cal. Bayreuther Assocs., 451 S.W.2d 752 (Tex. 1970) (premises-liability danger determination on reasonableness)
- Jamar v. Patterson, 868 S.W.2d 319 (Tex. 1994) (filing evidence deemed timely when tendered to clerk)