Astolfo v. Hobby Lobby Stores, Inc. (Tex.App.- Houston [1st Dist.] May
22, 2008)(Taft) (
premises liability, store, falling objects)

AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala)
01-06-00486-CV Patricia Astolfo and Harry Astolfo v. Hobby Lobby Stores, Inc.
Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown  
Attorneys: Nuru Lateef Witherspoon, David L. Pacione

MEMORANDUM OPINION

Appellants, Patricia and Harry Astolfo (“the Astolfos”), appeal the trial court’s summary judgment on their claims
against appellee, Hobby Lobby, Inc. (“Hobby Lobby”), for injuries sustained when two nesting tables  fell from a
shelf and struck Patricia Astolfo. We consider whether the Astolfos presented more than a scintilla of probative
evidence of each element of their premises liability claim to defeat summary judgment. We affirm.

Facts

Patricia Astolfo was visiting Hobby Lobby when she was struck by two nesting tables that spontaneously fell
from the top display shelf while she was walking down the aisle. Prior to this incident, the tables had been on
the top display shelf for three to six weeks without incident.   Patricia Astolfo contends that the tables were
“stacked”  
Much of the Astolfos’ argument is based on the faulty premise that the tables which fell were “stacked,” much
as one might do when storing items. To thecontrary, the tables at issue were “nesting” tables, intended to
stand one over the other, with the smaller underneath the larger of the tables. Each table stood independently.

Standard of Review

    In the appeal from a traditional summary judgment, we determine whether the movant met its summary
judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to
judgment as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin.
Corp., 988 S.W.2d 746, 748 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979). We accept as true all evidence that supports the non-movant, indulge every reasonable inference
in favor of the non-movant, and resolve any doubts in favor of the non-movant. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997).

    In a rule 166a(i) no-evidence summary judgment motion, the movant represents that no evidence exists as
to one or more essential elements of the non-movant’s claim upon which the non-movant would have the
burden of proof at trial. Tex. R. Civ. P. 166a(i). The non-movant must then present evidence raising a genuine
issue of material fact on the challenged elements. Id. We review a no-evidence summary judgment by viewing
the evidence in the light most favorable to the non-movant and disregarding all contrary evidence and
inferences. Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

    We review a trial court’s grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.
3d 656, 661 (Tex. 2005). The motion must state the specific grounds relied upon for summary judgment. Tex.
R. Civ. P. 166a(c). In other words, we will not affirm a summary judgment on a ground not included in the
motion for summary judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). When, as here, a
trial court does not state the reasons for its ruling, the judgment will be upheld upon any theory alleged in the
motion. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).

     We must determine whether the non-movant produced more than a scintilla of probative evidence to raise
a genuine issue of material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998,
no pet.). More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003) (quoting Merrell Dow Pharm. Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no
more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists.  
In their first issue, the Astolfos contend that “the trial court failed to apply thestringent standards required [for
summary judgment and] ignored appellants’thirty-three summary judgment exhibits . . . and granted appellee’s
motionwithout stating its grounds.” Because we review the grant of summaryjudgment de novo, we overrule
issue one.


Close Id.; Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Did Fact Issues Exist as to Each Element of the Astolfo’s Claim?

    In their second issue, the Astolfos contend that the trial court erred in granting Hobby Lobby’s motion for
summary judgment because “fact-issues existed and more than a scintilla of probative evidence was presented
to support each element of appellants’ premises liability claim.”

A.      The Law

    To prevail on a claim for premises liability, the Astolfos are required to prove four elements:

1. There was actual or constructive knowledge of some condition on the premises by the owner or occupier;



2. The condition posed an unreasonable risk of harm;



3. The owner or occupier failed to exercise reasonable care to reduce or eliminate the risk; and



4. The owner or occupier’s failure was a proximate cause of the injury to the party making the claim.

H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex. 1999); see Wal-Mart Stores, Inc. v. Reece, 81
S.W.3d 812, 814 (Tex. 2002); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). If no evidence exists
to support any one of the elements of the claim, the court’s ruling granting summary judgment was proper.

B.      Actual or Constructive Knowledge

    The Astolfos contend that there was more than a scintilla of evidence to show that Hobby Lobby had actual
or constructive knowledge of a condition that posed an unreasonable risk on the premises.

    1.       Actual Knowledge

    Although there is no one test for determining actual knowledge that a condition presents an unreasonable
risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or
reports of the potential danger presented by the condition. Univ. of Tex.-Pan Am. v. Aguilar, No. 07-0424, 2008
WL 1765553, * 2 (Tex. April 18, 2008) (citing Brinson Ford v. Alger, 228 S.W.3d 161, 163 (Tex. 2007), City of
Houston v. Harris, 192 S.W.3d 167, 175 (Tex. App.—Houston [14th Dist.] 2006, no pet.), and Rice Food Mkt v.
Hicks, 111 S.W.3d 610, 613 (Tex. App—Houston [1st Dist.] 2003, pet. denied)).

    The evidence conclusively establishes that Hobby Lobby had no actual knowledge that a dangerous
condition existed prior to the incident involving Patricia Astolfo. See Wal-Mart Stores, Inc., 81 S.W.3d at 814.
Hobby Lobby had never before experienced “nested” merchandise “spontaneously” falling without some
contact from an employee or customer. See Rice Food Mkt, 111 S.W.3d at 613 (holding evidence legally
insufficient to establish knowledge of dangerous condition in absence of evidence that display had previously
fallen and of prior similar incidents). The Astolfos presented the previous three years of Hobby Lobby’s incident
reports that included reports of merchandise striking patrons. In all instances, the merchandise fell as a result
of handling by either the customer or an employee. There is no evidence of any prior instance in which
merchandise fell in the manner alleged to have occurred in this case.

    Furthermore, there is no evidence that Hobby Lobby knew of similar accidents within the industry, as the
Astolfos contend. Displaying merchandise on high shelves is a common and well-established practice of Hobby
Lobby and other retail entities. The evidence shows that Hobby Lobby does not stack excess merchandise on
its top shelves, a condition that it might have known could cause injury. On the contrary, the “nesting” tables
were displayed in the nested manner in which they were manufactured to be used, and the Astolfos presented
no evidence of prior nesting tables falling spontaneously from an elevated shelf.  
Citing to Mitchell v. City of Dallas, the Astolfos urge that creating anunreasonable risk necessarily creates a
fact issue sufficient to warrant denialof Hobby Lobby’s motion. 855 S.W.2d 741, 749 (Tex. App—Dallas 1993),
aff’d, 870 S.W.2d 21 (Tex. 1994). Unlike in Mitchell, this case does notinvolve a special defect, nor is there any
evidence that Hobby Lobby created“a willful, wanton, and grossly negligent condition.”


Close

    2.       Constructive Knowledge

    “Constructive (or imputed) knowledge” is defined as knowledge that a person, after a reasonable
inspection, ought to have or has reason to have. Hall v. Sonic Drive-In of Angleton, 177 S.W.3d 636, 645 (Tex.
App.–Houston [1st dist.] 2005, pet. denied). Constructive knowledge is imputed when the premises owner had
a reasonable opportunity to discover and to remedy an allegedly dangerous condition. Wal-Mart, 81 S.W.3d at
816. Without temporal evidence, there is no basis upon which a court can determine that the premises owner
should have discovered the dangerous condition. Id. at 814.

    Here, the only temporal evidence shows that, immediately prior to this incident, the display was secure and
showed no signs of presenting a dangerous condition. The tables were not leaning forward or hanging off the
shelf. Hobby Lobby employees routinely inspected the displays throughout the day and upon opening and
closing the store. The Astolfos presented no evidence that Hobby Lobby should have discovered that these
tables caused an unreasonably dangerous condition on its premises.

    Citing to National Convenience Stores v. Erevia, the Astolfos contend that Hobby Lobby had constructive
knowledge of the “common problem of falling merchandise and the general dangers associated with heavy
merchandise falling from display shelves” and that Hobby Lobby did not have guidelines in place to address
this danger.  
In Erevia, a customer was injured in a slip and fall accident, which was causedby a puddle of water that had
accumulated on the floor due to a barrel displaycontaining ice and drinks. Nat’l Convenience Stores, Inc. v.
Erevia, 73 S.W.3d518, 522–23 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The evidenceestablished
that there were no warning signs in place, nor were the store’ssafety guidelines followed. Id. at 520. Unlike in
Erevia, Hobby Lobby’splacement of the nesting tables on the high shelf did not present a generaldanger or
likelihood that the tables would fall. The nesting tables had been inplace for a number of weeks, inspections
were performed of the entire storeevery day, all safety procedures were followed, and no incident of this kind
hadever happened before.


Close 73 S.W.3d 518, 522–23 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Assuming that Hobby Lobby
was aware of the general danger of falling merchandise, there is no evidence of any prior similar incidents of
which Hobby Lobby should have been aware, and thus no evidence to show that guidelines concerning this
type of merchandise were needed.   We hold that the Astolfos presented no evidence that Hobby Lobby had
constructive knowledge of the allegedly dangerous condition on its premises.

    Because the Astolfo’s failed to raise a fact issue as to whether Hobby Lobby had actual or constructive
knowledge of an unreasonably dangerous condition on its premises, we overrule issue two.

Did Hobby Lobby Judicially Admit that It Created a Dangerous Condition?

    In their third issue, the Astolfos rely on the Texas Supreme Court decision of Brookshire Grocery Co. v.
Taylor to assert that Hobby Lobby should be held liable for the injuries sustained by the Astolfos because
Hobby Lobby admitted that its display created an unusually high risk of injury. See222 S.W.3d 406, 408 (Tex.
2006); see also Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983). In both the Corbin and the
Brookshire cases, a customer was injured in a slip-and-fall incident. Corbin involved a slip and fall related to a
slanted self-service grape display. Corbin, 648 S.W.2d at 296. In Brookshire Grocery, the slip and fall was
related to a self-serve drink machine. Brookshire, 222 S.W.3d at 407–08. In both cases, the defendants
admitted that the conditions prior to the incidents posed an unreasonably high risk to the customer, there was
knowledge of prior incidents, there were no warning signs posted, and there was some failure to follow safety
protocol. Id; Corbin, 648 S.W.2d at 296.

    The Astolfos contend that an admission made by store manager Kent Davis during a deposition establishes
that Hobby Lobby did have actual and constructive knowledge of the allegedly dangerous condition. The
relevant testimony of Kent Davis follows:

Q: Okay, now, do you as a store manager think that it is safer to stack heavier merchandise toward the bottom
of a shelf or at the top of a shelf?



A: Merchandise, any merchandise, furniture?



Q: Heavy merchandise.



A: Okay. Well, if it were to stay, it would be safe up top. But, yes, heavy merchandise should ideally be at the
bottom.



Q: And why would that be?



A: Why would what be?



Q: Why would you want the heavy merchandise at the bottom as opposed to the top?



A: Because if it did fall, it would be more likely to hurt someone.



Q. All right. Do you think a reasonable person just as a general proposition would stack heavy merchandise at
the bottom of a shelf or at the top of a shelf?



A: It would depend on the situation.



    The deposition shows that the questions posed to Davis asked generally if Davis thought that heavy
merchandise placed on or near the bottom of a shelf is any safer than heavy merchandise placed at the top of
a shelf. Taken in context, this statement was not an admission that could raise a fact issue as to Hobby Lobby’s
knowledge. In CMH Homes v. Daenen, the court ruled that “evidence that an owner or occupier knew of a safer,
feasible alternative design, without more, is not evidence that the owner knew or should have known that a
condition on its premises created an unreasonable risk of harm.” 15 S.W.3d 97, 102 (Tex. 2000). Accordingly,
the deposition testimony of Kent Davis was not an admission of knowledge that the table-placement created an
unreasonable risk of harm.

    Furthermore, the Astolfos contend that John Schumacher, the presiding district manager for Hobby Lobby,
knew of prior incidents similar to Patricia Astolfo’s within Hobby Lobby and of the dangers of falling
merchandise generally. However, the evidence shows no such admission. The relevant testimony of John
Schumacher follows:

Q: Prior to June of 2003, the Astolfos’ accident, had you seen any sort of TV shows or newspaper clippings or
magazines about the dangers of falling merchandise?



A: I can’t remember any specific, except maybe one, but it was more where the forklift had pushed merchandise
off, so . . .



Q: Okay, we’ll talk specifics in a minute if you can. But just generally speaking, you can recall seeing articles or
newspaper clippings or TV shows about—or warnings and news reports about falling merchandise, correct?



A: Perhaps.



    What appellant claims is an admission is taken out of context and as such is not an admission at all, but
rather is a general statement of public knowledge of “big box” or “warehouse” retailer incidents of falling
merchandise. None of this testimony was in reference to Hobby Lobby or the display in question. Hobby Lobby
consistently maintained that it did not stack merchandise, that the tables in question were not stacked, but were
nested as they were manufactured to be, and made no admission that it created a dangerous condition. We
overrule issue three.

    Because the Astolfos failed to provide more than a scintilla of evidence as to each element of their cause of
action, we hold that the court properly granted summary judgment.                   

Conclusion

    We affirm the judgment of the trial court.


                                                                  Tim Taft

Justice



Panel consists of Justices Taft, Keyes, and Alcala.