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Torts Click here for the full text of this decision In premises cases, constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. FACTS:Barbara Burns appeals a motion to strike expert testimony and the summary judgment granted in favor of the appellee, Baylor Health Care System, in a premises liability action. On Oct. 6, 1999, Burns and her daughter traveled to the Baylor University Medical Center Campus for a doctor’s appointment and parked in one of the facility’s underground parking lots. After the appointment, Burns and her daughter took an elevator back to the parking garage. Burns and her daughter exited the elevator and proceeded to walk toward the direction in which they had parked their car. Burns took a few steps and then fell from the curb in front of the elevators. Burns asserts that she fell because the parking garage floor and curb in front of the elevators were painted in such a manner as to create the illusion that there was no curb. Deposition photographic exhibits and testimony show that the curb top was painted yellow and the parking garage floor had a section of diagonal yellow stripes marking the area in front of the elevators. In the trial court, Baylor moved for summary judgment under Texas Rules of Civil Procedure 166a(c) and 166a(i) on two elements of premises liability: whether the curb was a condition posing an unreasonable risk of harm and whether Baylor had no actual or constructive knowledge of the premises defect, if any, of which Burns complained. Burns timely filed a response to Baylor’s motion and provided summary judgment evidence that included the affidavit and curriculum vitae of Jack Madeley, a safety engineering expert. Baylor filed a reply brief and a motion to strike the testimony of Burn’s expert witness. The trial court granted Baylor’s motion and granted summary judgment in favor of Baylor. The trial court denied Burns’ motion for reconsideration. Burns now brings this appeal. HOLDING:Reversed and remanded. Burns contends that the trial court abused its discretion in its decision to exclude the testimony of her expert witness, Madeley. Baylor objected to Madeley’s affidavit testimony on grounds that Madeley was not qualified to be an expert and that his opinions did not meet the requirements for expert testimony. Madeley has an extensive background in the field of safety engineering and is board certified as a safety professional. Further, Madeley’s qualifications included specialized knowledge in premises safety and accident cause analysis. Therefore, the court concludes that Burns carried her burden to provide proof of Madeley’s expert qualifications and specialized knowledge on the issues relevant to her claim. Madeley’s affidavit testimony provides depth or precision to the trier of fact’s understanding of a relevant issue in this case. “Rule 702 makes inadmissible expert testimony as to a matter which obviously is within the common knowledge of jurors because such testimony, almost by definition, can be of no assistance.” K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). Madeley possesses specialized knowledge of the human visual process, which is not obviously within the common knowledge of jurors. The court concludes that Burns carried her burden to provide proof that Madeley’s opinions would have assisted the trier of fact to understand the evidence or to determine a fact in issue and were beyond the common knowledge of the trier of fact. Baylor also argued that Madeley’s opinions were not relevant to the issues in the case and it questioned the reliability of Madeley’s research methods. Madeley’s research and observations of the underlying facts in the case, Madeley arrived at his conclusions regarding what he considered an unsafe condition � a poorly designed and/or marked curb step � and then made subsequent inferences as to Baylor’s failure to remedy the hazard. Madeley’s extensive background in safety engineering and safety management, along with his affidavit testimony concerning the application of his knowledge and experience to the underlying facts, sufficiently demonstrate that his opinions were reliable. The trial court’s function was not to determine whether Madeley’s conclusions were correct, but only whether the analysis used to reach them was reliable. Gammill v. Jack Williams Chevrolet Inc., 972 S.W.2d 713 (Tex. 1998). After reviewing all Baylor’s contentions, the court finds that there was no basis for the trial court to have stricken Madeley’s testimony. The court concludes that the trial court abused its discretion in excluding Madeley’s testimony under Rule 702. Burns included numerous photographs of the location of her fall in the Baylor parking garage. The photographs clearly lend support to Burn’s claim that the way the curb and surroundings were painted made that curb difficult to see. Together with deposition testimony by Burns and Keith Howse, the assistant director of public safety for the Baylor University Medical Center Campus, Burns produced some evidence that created a fact issue as to whether the curb posed an unreasonable risk of harm. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). Creating the condition does not establish knowledge as a matter of law for purposes of premises liability; however, creation of the condition is circumstantial evidence of knowledge. In premises cases, constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. 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.” Merrell Dow Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). Baylor also asserted that there was no evidence that it had actual or constructive knowledge of a condition posing an unreasonable risk of harm. In response, Burns presented summary judgment evidence to raise a fact issue as to whether Baylor had constructive knowledge of the condition of the curb. In his deposition testimony, Howse stated that as assistant director of public safety, he supervises the parking division, which consists of 40 personnel who operate the campus parking lots. Howse is also in charge of physical security and transportation services related to the parking division. Part of Howse’s general supervisory duties include general patrol and personnel review in the parking garage where Burns fell. Howse stated that in October 1998, a year before Burns fell, the parking garage was re-striped. Though Howse was assistant public safety director for the parking division at that time, he did not know why the garage was re-striped. Upon viewing a photograph of the area where Burns fell, as one would exit from the elevators walking forward, Howse acknowledged that the curb was difficult to see under those conditions as they appeared in the photograph. It is undisputed among the parties that use of the elevator entrance in the parking garage was a principle egress and ingress into the Baylor facility. Howse regularly patrolled the parking garage for the facility, and, therefore, the court can reasonably infer that he had ample opportunities to inspect the re-striped curb and surroundings during the year before Burns fell. Viewing the evidence in the light most favorable to Burns, and disregarding all contrary evidence and inferences, the court holds that there was more than a scintilla of evidence as to whether Baylor had constructive knowledge of the curb’s dangerous condition. The same evidence precluding no-evidence summary judgment precludes granting traditional summary judgment against Burns. The court finds that the trial court erred in granting summary judgment in favor of Baylor. OPINION:Chew, J.; McClure and Chew, JJ., and Hill, C.J. (ret.).

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