      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00308-CV



                                Fernando J. Somoza, Appellant

                                                 v.

                           Rough Hollow Yacht Club, Ltd., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
        NO. D-1-GN-07-000952, HONORABLE SCOTT OZMUN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Fernando J. Somoza filed suit against appellee Rough Hollow Yacht Club,

Ltd. (the “Yacht Club”) alleging causes of action for negligence and premises liability. The Yacht

Club filed a motion for summary judgment, which the trial court granted. Somoza appeals, arguing

that he raised genuine issues of material fact as to both claims. We affirm the summary judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Somoza was operating his jet ski on Lake Travis near the construction site of a new

marina owned and operated by the Yacht Club when he allegedly ran into a partially submerged steel

cable tethered to a floating dock. According to Somoza’s petition, the accident occurred “in the

Rough Hollow Cove areas,” a navigable waterway used for recreational boating. He pleaded that

the cable was installed above the water but could not be seen across the lake, that no warning signs
were posted to give notice of such cables, and that the area was not cordoned off, barricaded, or

otherwise marked.

               Somoza brought suit against the Yacht Club and several other individual and

corporate defendants, alleging negligence and premises liability claims. With respect to both claims,

he asserted that the Yacht Club breached the duty of care owed to him and proximately caused his

injuries by:


        a.     failing to cordon off, barricade, or otherwise mark the area;

        b.     failing to warn Somoza of the existence of a dangerous condition of which
               Rough Hollow had actual or constructive knowledge;

        c.     leaving the steel cable strung across the lake;

        d.     failing to take reasonable steps to remedy the dangerous condition;

        e.     failing to perform reasonable inspections;

        f.     failing to provide proper instruction regarding assembly of the dock(s)
               and cable(s);

        g.     failing to safely manufacture the dock(s) and/or cable(s);

        h.     failing to safely assemble the dock(s) and/or cable(s);

        I.     failing to safely supervise the assembly of the dock(s) and cable(s);

        j.     failing to provide proper instruction regarding installation of the dock(s) and
               cable(s) in the water;

        k.     failing to safely construct the dock(s) and/or cables.




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               The Yacht Club answered and, after a period of discovery, filed a hybrid traditional

(rule 166a(c)) and no-evidence (rule 166a(i)) motion for summary judgment asserting the following

grounds:


       Plaintiff has no claim for general negligence . . . because his negligence claim sounds
       solely in premises liability.

       Rough Hollow did not exercise actual control or retain a right of control over the
       work of its independent contractors, Floating Dock Supply and Spillar Boat Docks,
       and thus owed no duty in negligence to Plaintiff.

       Plaintiff was a trespasser, and therefore he has not properly pleaded his premises
       liability claim because he has not alleged that the Yacht Club acted willfully,
       wantonly, or with gross negligence.

       Plaintiff has produced no evidence to support a claim for negligence . . . ;
       specifically, he produced no evidence of the essential elements of duty, breach, or
       proximate cause.

       Plaintiff has produced no evidence that the Yacht Club injured Plaintiff willfully,
       wantonly or through gross negligence.


               The Yacht Club attached evidence to its motion, including excerpts from Somoza’s

deposition as well as the depositions of Haythem Dawlett, a limited partner of the Yacht Club, and

Kyle Spillar of Spillar Boat Docks. Dawlett testified that the Yacht Club had hired independent

contractors to construct and maintain the floating docks in the cove. Spiller, who installed and

maintained the docks, testified that the Yacht Club did not participate in the installation or

maintenance of the docks.

               In addition, the Yacht Club attached evidence in support of its assertion that Somoza

was a trespasser, including his deposition testimony that he was not a member of the Yacht Club,



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has never owned a slip there, had not been invited, and had no permission to be in the area of the

marina at the time of the accident. Somoza further testified that he had been a boater and jet skier

in Austin for 25 years, that cables attaching docks to the shore are obvious and common conditions

on Lake Travis that he was familiar with, and that he believed the area where he was injured to be

public property. The evidence also established that, at the time of the accident, no one else was

present in the cove and no construction work was being done on the marina.

               Somoza filed a response to the Yacht Club’s motion for summary judgment, arguing

that he was not a trespasser but was “at least” a licensee because the “marina complex was located

on the waters of a public lake and portions of it were to be held open for business to the general

public.” In support of his assertion, he attached a computer printout from the Rough Hollow Yacht

Club and Marina website depicting, among the club’s amenities, “The General Store (aka: The Ship

Store),” which he characterized as evidence that portions of the marina were open to the general

public “and thereby impliedly granted the boating public access.” At the hearing on the motion for

summary judgment, the trial court sustained the Yacht Club’s objections to this evidence.1

               After the hearing, the trial court granted the Yacht Club’s motion without specifying

the grounds on which it relied and severed Somoza’s claims against the Yacht Club, making the

order a final, appealable judgment. Somoza’s motion for new trial was overruled by operation of

law, and this appeal followed.




       1
         Somoza also attached to his response his complete deposition testimony, the LCRA’s
Highland Lakes Marina Ordinance, and the LCRA permit issued to the Yacht Club.

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                                     STANDARD OF REVIEW

                We review the trial court’s summary judgment de novo, taking as true all evidence

favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in

the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

Where, as here, a trial court’s order granting summary judgment does not specify the grounds relied

on, the reviewing court must affirm summary judgment if any of the summary judgment grounds are

meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

                A traditional motion for summary judgment is properly granted when the movant

establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter

of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). “A

defendant who conclusively negates at least one of the essential elements of the plaintiff’s cause of

action is entitled to summary judgment.” Little v. Texas Dep’t of Criminal Justice, 148 S.W.3d 374,

381 (Tex. 2004). A party seeking a no-evidence summary judgment, on the other hand, must assert

that there is no evidence of one or more essential elements of a claim on which the opposing party

will have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (per curiam). If, in the face of such an assertion, the nonmovant fails to produce

more than a scintilla of probative evidence raising a genuine issue of material fact as to each

challenged element on which he has the burden of proof, summary judgment is proper. King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In reviewing a summary judgment, we view




                                                    5
the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and

inferences unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005).


                                           DISCUSSION

               In his first issue, Somoza argues that summary judgment was improper as to his

general-negligence claim because he raised genuine issues of material fact regarding the challenged

elements of duty, breach, and proximate cause. In his second issue, he argues that the Yacht Club

was not entitled to summary judgment as to his premises-liability claim because it failed to establish

that he was a trespasser as a matter of law. We will address his second issue first.


Premises Liability

               Somoza argues that the trial court erred in granting summary judgment on his

premises-liability claim “because there is a disputed fact issue as to whether [he] was a trespasser,

a licensee, or some other category of plaintiff.” He asserts that the Yacht Club failed to meet its

burden of showing that he was a trespasser as a matter of law because his evidence, “in conjunction

with judicial notice of the public nature of the Lake and applicable LCRA Ordinances (and common

sense), support[s] the existence of genuine issues of material fact.” On the contrary, he urges, he was

not a trespasser because the Yacht Club does not own or possess the waters of Rough Hollow Cove

where he was injured, because those waters are the property of the State and are held open for public

use. Therefore, because he was “at least” a licensee, Somoza argues that the Yacht Club had a duty




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to either warn him of the dangers posed by its partially submerged cable or to make the cable

reasonably safe.

               The Yacht Club responds to Somoza’s argument by urging that if in fact the premises

where Somoza was injured was public, then the Yacht Club cannot be considered the owner or

controller of the premises and thus owed him no duty. “[T]o prevail on a premises liability claim

a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the

premises where injury occurred.” Wilson v. Texas Park & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex.

1999). A plaintiff must prove that the defendant had control over and responsibility for the premises

before a duty can be imposed on the defendant. County of Cameron v. Brown, 80 S.W.3d 549, 556

(Tex. 2002); see Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993) (defendant

must have had control of premises to be liable under premises liability). The control that the

defendant had over the premises must relate to the condition or activity that caused the injury. See

Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527-28 (Tex. 1997).

               “But a premises-liability defendant may be held liable for a dangerous condition on

the property if it ‘assum[ed] control over and responsibility for the premises,’ even if it did not own

or physically occupy the property.” County of Cameron, 80 S.W.3d at 556 (quoting City of Denton

v. Van Page, 701 S.W.2d 831, 835 (Tex. 1986)). “The relevant inquiry is whether the defendant

assumed sufficient control over the part of the premises that presented the alleged danger so that the

defendant had the responsibility to remedy it.” Id. In his petition, Somoza pleaded without further

elaboration that the Yacht Club “had control” of the area of the lake in which the accident occurred.

In response, the Yacht Club produced evidence that its independent contractors, Floating Dock



                                                  7
Supply and Spillar Boat Docks, had in fact assumed control over the floating docks and attached

cables. Haythem Dawlett, a limited partner of the Yacht Club, testified that Ed Thompson of

Floating Dock Supply provided the Yacht Club a turnkey marina, and that Floating Dock Supply

subcontracted with Spillar Boat Docks to perform the work. Kyle Spillar, who installed and

maintained the docks, testified that the Yacht Club did not participate in either the installation or the

maintenance of the docks.

                It is well established that “an owner or occupier of land does not owe any duty to

ensure that an independent contractor performs his work in a safe manner.” Hoechst-Celanese Corp.

v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (citing Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631

(Tex. 1976)); see Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006); Williams,

952 S.W.2d at 527. In light of the Yacht Club’s uncontroverted summary-judgment evidence that

it did not exercise actual control over the premises where Somoza was injured or retain the right to

control the work of its independent contractors in installing and maintaining those premises,

we conclude that the Yacht Club conclusively negated the essential element of duty. Therefore, the

trial court did not err in granting summary judgment in favor of the Yacht Club on Somoza’s

premises-liability claims, regardless of whether he was a licensee or a trespasser.2 We overrule

Somoza’s second issue.




        2
          Further, because Somoza did not argue or attempt to show that maintaining a floating dock
is an inherently dangerous activity, we reject his argument that the duty owed by the Yacht Club is
non-delegable. Cf. Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981) (property owner’s
duty not to endanger public highway users by its negligent demolition of three-story building
adjacent to highway could not be delegated to independent contractor).

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General Negligence

               In addition to premises liability, Somoza brought a cause of action for general

negligence, i.e., negligent activity, alleging that the Yacht Club owed him a duty to make safe or

warn of the dangerous condition it placed on its private property adjacent to the public waterway.

The Yacht Club argued in its motion for summary judgment, among other grounds, that Somoza’s

pleadings did not allege a cause of action for general negligence, but instead could only reasonably

be construed to allege a premises-liability claim.

               Although a litigant may maintain causes of action for both general negligence and

premises liability, see Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005), under the

general-negligence theory of recovery, the claimant’s injury must result from the defendant’s

contemporaneous activity. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). To recover

under a negligent-activity theory, the injured party must have been injured by, or as a

contemporaneous result of, the activity itself, not by a condition the activity created. Keetch

v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). When the alleged injury is the result of the

condition of the premises, the injured party can only recover under a premises-defect theory.

H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); see also Shumake, 199 S.W.3d

at 284 (stating that premises-defect claim is based on the existence of unsafe condition on property).

               Somoza alleged that he was injured when his jet ski collided with an unseen, partially

submerged metal cable, which constituted a dangerous condition known to the Yacht Club that it

failed to warn of or make reasonably safe. He did not allege that he was injured by any negligent

activity on the part of the Yacht Club. Thus, the Yacht Club asserts that Somoza’s pleadings,



                                                  9
even construed liberally, exceeded simple negligence and differed substantially from those

required to trigger a negligent-activity claim. See Timberwalk Apartments, Partners, Inc. v. Cain,

972 S.W.2d 749, 753 (Tex. 1998) (stating that claimant did not allege she was injured “by or as a

contemporaneous result of any activity of defendants” so as to state negligent-activity claim).

But see Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) (noting that “[t]he lines

between negligent activity and premises liability are sometimes unclear . . . .”). Accordingly, the

Yacht Club argues that Somoza’s pleadings invoked only a premises-liability claim, thereby

imposing on him the more rigorous proof required by that cause of action. See Clayton Williams,

Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (holding that premises-liability case requires

specific pleadings and proof beyond simple negligence).

                Assuming without deciding that Somoza could bring a claim for general negligence

despite his failure to allege injury resulting from any contemporaneous activity by the Yacht Club,

he has still failed to establish the existence of a duty to support a claim in negligence. See Smith

v. Merritt, 940 S.W.2d 602, 604 (Tex. 1997) (“In determining whether a cause of action in

negligence exists, the threshold inquiry is whether the defendants owed the plaintiffs a legal duty.”);

see also Texas Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002) (whether duty exists is

question of law for court to decide from surrounding facts). The plaintiff must establish both the

existence and violation of a duty owed to the plaintiff by the defendant to establish liability in tort.

Id.; see Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004).

                Somoza argues that the Yacht Club owed him, as a member of the general public,

a duty to make safe or warn of the dangerous condition it placed on its private property adjacent



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to the public waterway, analogizing this case to the facts in Alamo National Bank v. Kraus,

616 S.W.2d 908 (Tex. 1981). In Kraus, a passing motorist was killed when the unsupported wall

of a three-story building that was in the process of being demolished collapsed onto an adjacent

public street. 616 S.W.2d at 909. Based on evidence that the building owner did nothing to protect

the passing pedestrians and motorists during the months-long demolition project and that it had been

warned the day of the accident that the wall in question was leaning and posed a dangerous

condition, the jury found the building owner negligent and grossly negligent. Id. at 909-10. In

upholding the award of exemplary damages, the supreme court acknowledged that the “owner or

occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or

endanger the safety of persons using the highway as a means of passage or travel.” Id. at 910.

Comparing the “public waterway” where he was operating his jet ski to the public highway in Kraus,

Somoza urges this Court to recognize a duty owed by the Yacht Club in this case.

                As the Yacht Club points out, however, Kraus involved an inherently dangerous

activity, which precluded the property owner from delegating its duty to an independent contractor

in order to relieve itself of liability in negligence. See Fifth Club, Inc., 196 S.W.3d at 799

(describing exception to rule that landowner or employer is not liable for injuries caused by acts or

omissions of contractors or servants when work is inherently dangerous, as articulated by Kraus).

In the absence of such pleadings or proof in this case that the installation or maintenance of the docks

was an inherently dangerous activity, we conclude that, based on our foregoing analysis, the Yacht

Club established as a matter of law that it owed Somoza no duty as a result of its delegation of

control over the marina to its independent contractors. We overrule Somoza’s first issue.



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                                      CONCLUSION

              Having overruled Somoza’s issues on appeal, we affirm the summary judgment in

favor of the Yacht Club.




                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: July 20, 2010




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