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Click here for the full text of this decision FACTS:Majorie Marie Hall worked for Sonic Drive-In of Angleton Inc. for 25 years, 14 of which she worked with Michael Cantrell as her supervisor. In February 2001, while working in the restaurant’s kitchen, Hall picked a freezer cover up from off of the floor and cut her hand. She lost the use of her right hand, but returned to work three months later. When she returned to work, Hall claimed that Cantrell tried to force a french-fry scoop into her right hand, saying, “It don’t take a rocket scientist to scoop no damn fries. You don’t even have to use your thumb.” Hall told Cantrell he was hurting her, and Cantrell let her go, saying, “This is pathetic.” Hall sued Sonic and Cantrell for premises liability, assault and intentional infliction of emotional distress. In support of Sonic’s and Cantrell’s motion for summary judgment, the defendants submitted the affidavits of Cantrell and Brenda Ashworth, another Sonic employee, as well as portions from Hall’s oral deposition testimony. Cantrell stated in his affidavit that Hall and Ashworth were working in the same area where he was trying to repair a cooling unit on the refrigerator. To repair the unit, Cantrell had to remove a lightweight metal cover � about two square feet large � from the freezer. He removed the cover with his bare hands and laid it on a table, instructing both Hall and Ashworth not to touch it. A few minutes later, Cantrell had to leave the kitchen area because a bread truck had collided with a restaurant awning. As to the assault claim, Cantrell said in his affidavit that Hall’s nurse told him Hall needed to use her thumb at work. Seeing Hall’s reluctance to use her thumb, Cantrell tried to get Hall to handle the french-fry scoop. He said he did not intend to cause Hall injury and had no reason to think � based on 14 years of friendly relations with her � that Hall would take offense to his conduct. Ashworth’s affidavit added that when Cantrell left the kitchen area, Ashworth had moved the freezer cover and set it on the ground, leaning it against the table leg and telling Hall about it. She said she handled the cover by its edges, and had no problems with them. Soon after, though, she was called away to prepare an order. She said she turned her back briefly on Hall, but when she turned back, Hall was holding the cover in the hand she cut. In Hall’s oral deposition, she mentioned that one of the safety policies at Sonic was that if an employee came upon a potentially dangerous situation, he or she should get help before touching anything. As to the assault claim, she stated that she thought Cantrell wanted to show her she did not have to use her thumb to scoop french fries. In her response, Hall attached portions of her own oral deposition, as well as oral deposition testimony of Cantrell and Ashworth. In Cantrell’s oral deposition testimony, he said that he thought the cover slipped out of Hall’s hand because she’d recently sprayed water on the table where the cover was originally placed. He also conceded that her injury would not have happened if he had replaced the cover, which took only a brief time to remove or replace, before he left the kitchen area. In Ashworth’s oral deposition, she testified that although Cantrell told her and Hall not to move the freezer cover, she did so anyway so that she could use the table. She also said Hall would not have injured herself if she (Ashworth) had left the cover alone. In other portions of Hall’s oral deposition testimony, Hall said that when she picked up the freezer cover, it had slid to the floor. She also said Sonic had a safety policy to pick up anything that was on the floor. She denied spraying water on the table where the cover was first laid. The trial court granted Sonic’s and Cantrell’s motion for summary judgment without specifying the grounds. HOLDING:Reversed and remanded. On the premises liability claim, for which Hall is considered an invitee, the court notes that Hall had to prove 1. that Sonic had actual or constructive knowledge of some condition on the premises; 2. that the condition posed an unreasonable risk of harm; 3. that Sonic failed to exercise reasonable care to reduce or eliminate the risk; and 4. that Sonic’s failure to use such care proximately caused Hall’s injuries. As to actual or constructive knowledge, the court points out that Cantrell stated that he placed the freezer cover on the table and that the cover was still on the table when he left to chase after the bread truck driver. Ashworth testified that she removed the cover from the table and leaned it against the table leg on the floor. Thus, the evidence shows that Ashworth, a Sonic employee, knew the freezer cover was on the floor because she actually placed it on the floor, albeit against the leg of the table. Moreover, the evidence shows that Hall, another Sonic employee, actually saw the cover lying on the floor before she picked up the cover and injured herself. Accordingly, Sonic did not conclusively establish that it did not have actual knowledge of the condition. As to unreasonable risk of harm, the court finds that although evidence of Cantrell’s and Ashworth’s lack of any injuries attributable to the freezer cover might be probative of the issue, it does not follow that such evidence conclusively establishes the absence of an unreasonable risk of harm. Ashworth testified in her affidavit that she removed the freezer cover from the table and leaned it against the table leg on the floor. It would not be a stretch for a reasonable fact finder to conclude that a thin metal cover could easily slide or fall from such a position. Sonic, therefore, did not prove that the placement of the freezer cover on the floor did not pose an unreasonable risk of harm. As to failure to exercise reasonable care, Ashworth said she ignored Cantrell’s instruction not to touch the cover. Also, the Sonic policy required employees to pick up stray objects off the floor. Consequently, Hall raised a genuine fact issue on this element, too. As to proximate cause, Hall said she picked up the cover because it was on the floor, and that the cover cut her hand. Sonic, thus, did not conclusively prove that its conduct was not the cause-in-fact of Hall’s injury. Though Cantrell’s and Ashworth’s prior handling of the cover without incident is probative of the element of foreseeability in proximate cause, because Sonic had a policy requiring employees to pick up stray objects from the floor, it was foreseeable that Hall would pick up the cover, which she alleged had slid to the floor from its earlier resting place against the table leg. Summary judgment on Hall’s premises liability claim was improper. Summary judgment was also improper on Hall’s assault claim. Assault can be committed both intentionally and negligently. Consequently, Cantrell’s statement that he did not intend to cause Hall injury does not negate the cause of action. Finally, the court finds summary judgment should not have been granted on Hall’s intentional infliction of emotional distress claim, either, finding that Hall has not impermissibly separated out her assault claim from the emotional distress claim. Hall’s allegation is that Cantrell’s actions, regardless of any lack of intent to cause bodily injury or offensive contact, including his belittling of her condition upon her return to work, caused her to suffer severe emotional distress, not just a physical injury. Because Sonic’s and Cantrell’s summary judgment motion did not address Hall’s intentional infliction of emotional distress claim, the court holds that the trial court erred in granting summary judgment motion on this claim. OPINION:Terry Jennings, J., delivered the court’s opinion.

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