                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                 §
 STACEY D. GAILEY,                                              No. 08-08-00255-CV
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                               34th District Court
                                                 §
 MERMAID POOLS OF EL PASO, LLC,                               of El Paso County, Texas
 and ROBERT PURDUE & CO., INC.                   §
 D/B/A MERMAID POOLS,                                              (TC # 2007-008)
                                                 §
                        Appellees.


                                          OPINION

       Stacey D. Gailey appeals from a summary judgment granted in favor of Mermaid Pools of

El Paso, LLC and Robert Pursue & Company, Inc. d/b/a Mermaid Pools (Mermaid Pools). For the

reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Gailey hired Mermaid Pools to build a swimming pool in her backyard. The construction

began on July 30, 2005 and was completed around August 30. Mermaid installed a skimmer in the

deck surrounding the pool to filter the water and skim leaves from the surface. During construction,

the skimmer is left uncovered and it is covered by a lid only when construction is complete. On

August 25, Mermaid’s employees left for the day at approximately 5:30 p.m. and told Gailey she

could go into the backyard to view the pool twenty-four hours later. The following evening at

around 10 p.m., Gailey went into the backyard with her family and was injured when she stepped

into the uncovered skimmer. Gailey filed suit against Mermaid, alleging negligence related to a

premises condition. Mermaid filed a motion for summary judgment asserting there was no evidence
it owed Gailey a duty to warn her of the open and obvious condition on her property and no evidence

that it had breached any duty. The trial court granted the motion and entered a take nothing

judgment in favor of Mermaid Pools.

                                               DUTY

       In Issue One, Gailey complains that Mermaid owed her a duty to make the dangerous

condition safe or to warn her of the dangerous condition it had created. Mermaid counters that it

owed Gailey no duty because she was the owner of the premises. Because the duty issue is

dispositive of the appeal, it is unnecessary to address Gailey’s other arguments.

       We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 156 (Tex. 2004). A no-evidence summary judgment is essentially a pretrial directed

verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 750-51 (Tex. 2003). Accordingly, we review the evidence in the light most favorable to the

non-movant, disregarding all contrary evidence and inferences. Id. at 751. A no evidence point will

be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact,

(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence

conclusively establishes the opposite of the vital fact. Id. Thus, a no-evidence summary judgment

is improperly granted if the respondent brings forth more than a scintilla of probative evidence to

raise a genuine issue of material fact. TEX .R.CIV .P. 166a(I); Id.

       Duty is the threshold inquiry in a negligence case, including one of premises liability. Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Almanza v. Navar, 225 S.W.3d 14, 20

(Tex.App.--El Paso 2005, no pet.). In a premises liability case, the duty owed to the plaintiff
depends on the plaintiff’s status on the premises as an invitee, licensee, or trespasser at the time of

the incident. Almanza, 225 S.W.3d at 21. Duty requires a legal analysis balancing a number of

factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing

the burden on the defendant. General Electric Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008). The

existence of a duty is a question of law for the court to decide based on the facts of the case. Moritz,

257 S.W.3d at 217; Almanza, 225 S.W.3d at 21.

        As a general rule, a landowner or one who is otherwise in control of the premises must use

reasonable care to make the premises safe for licensees and invitees. Clayton W. Williams, Jr., Inc.,

v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Lefmark Management Co. v. Old, 946 S.W.2d 52, 53

(Tex. 1997); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty includes warning

invitees and licensees of known hidden dangers that present an unreasonable risk of harm. Lefmark,

946 S.W.2d at 53. An owner or occupier of land in control of the premises may be liable for two

types of negligence in failing to keep the premises safe: that arising from an activity on the premises,

and that arising from a premises defect. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527;

Redinger, 689 S.W.2d at 417. In this case, Gailey contends she was injured by the skimmer left

uncovered during construction, not as a contemporaneous result of Mermaid’s negligence. Clayton

W. Williams, Jr., Inc., 952 S.W.2d at 527. Consequently, this is a premises defect case, not a

negligent activity case. Id., citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)(holding

contemporaneous result of the activity itself). When such a duty is owed, the premises owner or

occupier must either adequately warn of the dangerous condition or make the condition reasonably

safe. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527.

        Gailey, as the owner of the premises, is not an invitee, licensee, or trespasser. She was in

control of the premises at the time of the injury. Yet she seeks to impose a duty on the independent
contractor hired to construct her pool and deck to warn her about an alleged premises defect created

during the ongoing construction. Gailey has not directed us to any authority in where such a duty

has been imposed on an independent contractor and we are aware of none. We conclude that

Mermaid did not owe a duty to warn Gailey about the uncovered skimmer or to cover it prior to

completion of construction. The trial court properly granted summary judgment in favor of Mermaid

on this ground. We overrule the sole issue for review and affirm the summary judgment.


June 23, 2010
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment
