To recover on a negligent-activity theory, Tanner was required to prove that she was
injured by or as a contemporaneous result of the defendant's activity rather than by a
condition created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Lowe's
Home Centers Inc. v. GSW Marketing, Inc. (Tex.App.- Houston [14th Dist.] Jun. 30, 2009 (op. by Guzman)
(workplace safety, premises liability-store - falling merchandise, negligent activity and premises liability,
premises defect, worker compensation subrogation) AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Brock Yates, Guzman and Sullivan
14-07-00953-CV Lowe's Home Centers Inc & Natasha Tanner v. GSW Marketing, Inc. f/k/a Salesmaker, Inc.
d/b/a CSA Services Southwest and Snow Mountain Construction, Inc
Appeal from 333rd District Court of Harris County
Trial Court Judge: JOSEPH J. HALBACH
Tanner sued both Snow Mountain and Salesmakers on the same two theories of liability: negligent activity and
premises liability, also known as premises defect. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523,
527 (Tex. 1997). To recover on a negligent-activity theory, Tanner was required to prove that she was injured
by or as a contemporaneous result of the defendant's activity rather than by a condition created by the activity.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). In response to the appellees' respective motions for
no-evidence summary judgment, Tanner produced no evidence that Snow Mountain or Salesmakers was
engaged in ongoing activities on the premises at the time she was injured. Thus, the trial court properly
granted summary judgment in favor of both appellees on Tanner's negligent-activity claim. See id. (holding
that the trial court properly refused to submit a negligent-activity instruction to the jury in the absence of
evidence that the defendant was engaged in an ongoing activity at the time of injury). We therefore overrule
both of Tanner's issues regarding this cause of action, and affirm summary judgment in favor of Snow
Mountain and Salesmakers as to the negligent-activity claim.
Tanner's remaining claims of premises liability required proof, with regard to each defendant, of the following
elements: (1) actual or constructive knowledge of some condition on the premises by the owner/operator, (2)
the condition posed an unreasonable risk of harm, (3) the owner/operator did not exercise reasonable care to
reduce or eliminate the risk, and (4) the owner/operator's failure to use such care proximately caused her
injuries. See id. (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)).