In this premises liability case, we decide whether Texas Rule of Civil Procedure 193.6, which provides for the exclusion of evidence due to an untimely response to a discovery request, applies in a summary judgment proceeding. We hold thаt it does and, therefore, reverse the court of appeals’ judgment.
In April 2004, Coy Gillenwater and his wife rented a condominium at the Fort Brown Condoshares in Brownsville. While visiting the condominium swimming pool, Gillenwater attempted to sit down in a pool-side chair. As he lowered himself into the chair, the tip of Gillenwater’s right ring finger was severed by what Gillenwa-ter alleged to be a broken weld on the chair’s frame. Gillenwater filed a premises liability claim against Fort Brown. The parties enterеd into, and the trial court approved, an “Agreed Level III Scheduling Order,” which set August 19, 2005, as the deadline for expert disclosure.
See
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Tex.R. Civ. P. 190.4(a) (permitting the trial court to establish a “discovery control plan tailored to the circumstances of the specific suit”). The order contained all the requirements of a level three discovery plan.
See id.
Fort Brown subsequently agreed to two extensions of the expert disclosure deadline, to August 25, 2005, and September 22, 2005, respectively. Gillenwаter failed to disclose an expert by any of these deadlines. On February 10, 2006, Fort Brown filed a no-evidence motion for summary judgment, alleging that Gillenwater presented no evidence that (1) the condition of the chair posed an unreаsonable risk of harm; and (2) Fort Brown knew or reasonably should have known of any danger presented by the chair. Gillenwater’s response to this no-evidence motion included an affidavit of a previously undisclosed expert, Paul Caí-pеr, P.E. Fort Brown objected to the affidavit filed with the response, arguing that (1) the expert was not timely disclosed under the scheduling order; and (2) regardless of the scheduling order’s application, the expert’s affidavit was conclusory. In respоnse, Gillenwater argued that Carper’s affidavit was competent summary judgment evidence, that Texas Rule of Civil Procedure 193.6 did not apply in a summary judgment setting, and that even if it did, Fort Brown was not unfairly surprised or prejudiced by the affidavit. The trial cоurt sustained the objections, excluded the expert’s affidavit, and granted Fort Brown’s no-evidence motion for summary judgment. The court of appeals reversed, holding that the trial court abused its discretion in striking the expert’s affidavit because Rule 193.6 does not apply in a summary judgment proceeding.
Under Rule 193.6, discovery that is not timely disclosed and witnessеs that are not timely identified are inadmissible as evidence. Tex.R. Civ. P. 193.6(a). A party who fails to timely designate an expert has the burden of establishing good cause or a lack of unfair surprise or prejudice before the trial court may admit the evidence. Tex.R. Civ. P. 193.6(b). “A trial court’s exclusion of an expert who has not been properly designated can be overturned only upon a finding of abuse of discretion.”
Mentis v. Barnard,
Our conclusion is based on the changes made to the pretrial discovery rules and the introduction of the no-evidence motion for summary judgment. The former pretrial discovery rules established a fluid deadline for discovery disclosure, which could be modified bаsed on a change in the date of trial.
Ersek,
Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the agreed scheduling order and subsequent extension agreements. The trial court struck the expert’s affidavit and did not consider it in granting the summary judgment.
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Having held that the expert’s affidavit was properly excluded, we must review the remaining evidence to determine whethеr the trial court appropriately granted Fort Brown’s motion for summary judgment. As an invitee, Gillenwater must prove, under his premises liability claim, that (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or l-easonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner’s failure was a proximate cause of injury to the invitee.
State Dep’t of Highways & Public Transp. v. Payne,
• Gillenwater’s unchallenged explanation of the how the occurrence happened (by lowering himself into the chair while grabbing the sides). Gillenwater argues this allows an inference that the chair was already broken.
• Photographs of the chair taken by an insurance adjuster after the injury.
• A deposition from Frank Collins, the condominium manager, testifying that:
► It was the condominium’s responsibility to maintain the outdoor lawn equipment in a safe condition;
► Collins first becаme aware of the injury the day after the incident;
► Collins has an associate’s degree in welding;
► Collins knew the combination of chlorine and salt water in the air had a corrosive effect on metal chairs by the pool; and
► Collins had an employee inspect, wash, and clеan all the outdoor lounge chairs by the pool (including the chair at issue) six days a week.
• Collins and Gillenwater inspected the chair the day after the injury. The broken weld was visible to both men and was on the same side of the chair where Gillenwater had placed his hand. After the incident, Collins inspected the other chairs by the pool and found “hairline cracks” in those chairs, which he subsequently repaired or replaced.
Gillenwater argues that this evidence proves the broken welds were easily visible to the naked eye prior to the accident. We disagree. Instead, it only establishes that the chairs were inspected regularly because of the awareness of possible corrosion, thаt Gillenwater was injured, and that Collins first became aware of the injury and the chair’s condition the day after the injury occurred. This evidence has no bearing on whether broken welds was visible prior to the injury. Gillenwater also argues it is reasonable to infer the dangerous condition was present and seen by employees when the chairs were washed because “common sense dictates that the hairline cracks and broken rungs visible on the chair at issue and the other chairs surrounding the pool did not occur over night.” But this conclusion is precluded by our holding in
CMH Homes, Inc. v. Daenen,
[TJhere was no evidence or even contention thаt CMH had failed to inspect as frequently as it reasonably should. Similarly, there is no evidence that the instability in the step and platform unit had existed for a sufficient time that CMH had constructive notice of the unreasonable risk of harm.
Id. Here, no еvidence was presented that Fort Brown actually knew the chair had become dangerous or that Fort Brown failed to reasonably inspect the chairs. The record demonstrates that Fort Brown inspected and washed the chairs six days a week out of concern for the corrosive effect of the pool chlorine and salt water in the air. Gillenwater also offered no evidence that the broken welds existed on the chair for any length of time prior to the accident. The fact that Gillenwater’s fingertip was severed and that the chair broke is evidence that a dangerous condition existed, but it offers no evidence as to how long it existed. The only possible evidence that а broken weld existed in the chair for any length of time is Collins’ testimony that he repaired other chairs with hairline cracks after the accident. But not only does a hairline crack not present the same degree of danger as a broken weld, this argument addresses knowledge of other chairs, not the one that actually broke. Therefore, we reverse the court of appeals’ judgment and render a take-nothing judgment in favor of Fort Brown.
Justice JOHNSON did not participate in the decision.