AFFIRM; Opinion Filed September 5, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01356-CV

                                 SAMANTHA HUY, Appellant
                                           V.
                                  ROBERT TREJO, Appellee

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. DC-12-05068-E

                              MEMORANDUM OPINION
                           Before Justices Lang, Fillmore, and Schenck
                                   Opinion by Justice Schenck
       Samantha Huy appeals the trial court’s take-nothing judgment on her premises-liability

claim against Robert Trejo. In three issues, she challenges the legal and factual sufficiency of the

evidence supporting the trial court’s conclusions of law that she failed to prove (1) a dangerous

condition existed (2) that was the proximate cause of her fall and injuries and (3) Trejo knew about

the dangerous condition and failed to repair it. We affirm the trial court’s judgment. Because all

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND
       For approximately six months, Huy lived with her husband Michael in an apartment located

in Dallas that they leased from Trejo. Around 8:30 p.m. on October 6, 2010, Huy took two steps

off the front stoop of the apartment when her right foot hit a crack in the pavement, and she fell to
the ground. Michael took Huy to the hospital where she was treated and diagnosed with a fractured

foot. She could not put any weight on the foot and required surgery to repair the injury.

       On May 7, 2012, Huy filed this lawsuit, asserting a premises-liability claim due to the

alleged dangerous condition created by cracked pavement and little to no lighting in her apartment

parking lot. The case proceeded to a bench trial, which resulted in a judgment in her favor against

Trejo. Trejo appealed that judgment. See Trejo v. Huy, No. 05-14-00310-CV, 2015 WL 4109989,

at *1 (Tex. App.—Dallas July 8, 2015, pet. denied) (mem. op.). We reversed the trial court’s

judgment and remanded the cause to the trial court for a new trial on liability and damages. In

doing so, we concluded the trial court erred in allowing Trejo to waive a jury trial before he was

provided an interpreter. We also overruled Trejo’s issues challenging the legal sufficiency of the

evidence supporting the trial court’s findings of fact. Id. at *3–4.

       On remand, both parties waived their respective rights to a jury trial, and the case proceeded

to a bench trial on August 22, 2017. At trial, Huy, Trejo, and Michael testified, and Huy offered

her medical records and photographs of the apartment and her injured foot. On August 28, 2017,

the judge signed a take-nothing judgment in favor of Trejo. The next day, Huy timely requested

findings of facts and conclusions of law and, thereafter, filed a notice of past-due findings of fact

and conclusions of law. On October 18, 2017, the judge signed findings of facts and conclusions

of law supporting the judgment. Huy timely filed this appeal.

                                            DISCUSSION
       In three issues, Huy challenges the legal and factual sufficiency of the evidence supporting

the trial court’s conclusions of law. We review a trial court’s conclusions of law de novo. BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We independently

evaluate the trial court’s conclusions of law to determine whether the trial court correctly drew the

legal conclusions from the facts. See id. Appellant relies on the standard of review we apply to

findings of fact, which requires that we review the sufficiency of the evidence in the record. See


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Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42 (Tex. 2001) (per curiam) (setting forth

standards of review for legal and factual sufficiency of adverse finding on issue on which appellant

has burden of proof). We may not review the sufficiency of the evidence to support conclusions

of law. In re Guardianship of Miller, 299 S.W.3d 179, 188 (Tex. App.—Dallas 2009, no pet.) (en

banc). However, we may review the correctness of the conclusions as drawn from the facts. Id.

          To establish a premises-liability claim, a plaintiff who is an invitee must prove:

          1. The owner or occupier had actual or constructive knowledge of the condition on the
             premises;

          2. The condition posed an unreasonable risk of harm;

          3. The owner or occupier failed to exercise reasonable care to reduce or eliminate the risk;
             and

          4. Such failure was the proximate cause of the plaintiff’s injuries.

Dalton v. Pace Realty Corp., No. 05-05-01490-CV, 2006 WL 2062936, at *2 (Tex. App.—Dallas

July 26, 2006, no pet.) (mem. op.) (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.

2000)).

          In her first issue, Huy challenges the trial judge’s conclusion of law that Huy “failed to

prove that a dangerous condition existed in the parking lot by her door on October 6, 2010.

Photographs that were taken a month earl[ier] about 6 to 61/2 [sic] feet from the door of Plaintiff,

failed to show a dangerous condition.”

          Whether a particular condition poses an unreasonable risk of harm is generally fact

specific, and there is no definitive test for determining whether a specific condition presents an

unreasonable risk of harm. Shoemaker v. Kohl’s Dep’t Stores, Inc., No. 05-16-00273-CV, 2017

WL 1192797, at *2 (Tex. App.—Dallas Mar. 31, 2017, no pet.) (mem. op.). Evidence of a similar

injury or complaint caused by the condition is probative on the question of whether the condition

posed an unreasonable risk of harm. Id. Further, the fact that an accident happens is no evidence

that there was an unreasonable risk of such an occurrence because almost any activity involves


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some risk of harm. Id. (citing Thoreson v. Thompson, 431 S.W.3d 341, 344 (Tex. 1968)). The

duty a premises owner owes to its invitees is not that of an insurer. Brinson Ford, Inc. v. Alger,

228 S.W.3d 161, 162 (Tex. 2007). That is to say, a condition is not unreasonably dangerous simply

because it is not foolproof. Id. at 163.

           At trial, Huy offered photographs showing cracks in pavement that she and Michael

testified were located outside their apartment door. Three of the photographs showed one of the

cracks was approximately one inch deep, six inches long, and two inches wide.1 Huy and her

husband Michael testified that the photographs were representative of how the area looked on the

evening she fell. Huy testified that when she fell, there were “no lights in my apartments” and it

was already dark outdoors. On cross-examination, Huy admitted that Michael, who had had a

knee operation and walked with a cane, had never fallen on the cracks outside their apartment.

She also admitted that she did not know of anyone else who had fallen on those cracks. Huy stated

that she never told Trejo that she fell because of a crack in the pavement. She explained this

omission by stating that she had made complaints to Trejo before, but “they fell on deaf ears,” so

she felt any further complaint would be a waste of her time.

           Trejo testified that as the property manager, he repaired cracks and broken pavement and

ensured the property was well lit for the safety of his tenants. But he further specified that he only

repaired large cracks and that the cracks shown in Huy’s photographs were “normal cracks” not

large enough for him to repair. He admitted that broken pavement was a potential danger to tenants

and that broken pavement in a dark area would be a dangerous condition. Trejo also stated that

each apartment has a light fixture, there were lights for the parking lot, and that no one complained

to him about the lights surrounding the parking lot. According to Trejo, Huy never complained to

Trejo about the cracks, and when he saw her with bandages on her right foot and inquired as to


     1
        The three photographs of one of the cracks showed quarter coins placed in the crack to estimate the depth, length, and width of the crack.
According to the United States Mint, a quarter dollar coin measures 0.955 inches in diameter.                      See UNITED STATES MINT,
https://www.usmint.gov/learn/coin-and-medal-programs/coin-specifications (last visited Aug. 16, 2018).

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what had happened, she told him that she had hurt her foot falling on the back of a U-Haul truck.

Trejo testified that none of his other tenants—at least 16 at any given time—have ever complained

about the condition on the property. He stated the City of Dallas inspects his property and that he

had not received any citations.

           We conclude the trial court correctly determined that the cracks at issue in this case did not

pose an unreasonable risk of harm. Huy fell on an area of cracked pavement that she had known

was cracked for at least one month before she ventured out in what she testified was a dark and

unlit area, although Trejo offered competing testimony that the area was adequately lighted and he

had received no complaints regarding a lack of lighting. There was no evidence that anyone else

had fallen in that area, and Trejo testified the cracks in the pavement were not of a size that he

would repair, but were instead “normal” cracks. See Alger, 228 S.W.3d at 163–64 (holding that

ramp did not pose unreasonable risk of harm as matter of law because it not only met applicable

safety standards but contained additional safety features, and there were no reports of injuries or

complaints for previous ten years).

           We overrule Huy’s first issue. In light of this conclusion, we need not address Huy’s

second or third issues. See TEX. R. APP. P. 47.4.2

                                                               CONCLUSION

           We affirm the trial court’s judgment.




                                                                           /David J. Schenck/
                                                                           DAVID J. SCHENCK
                                                                           JUSTICE
171356F.P05


      2
        In Huy’s second issue, she challenges the conclusion that she failed to establish that the dangerous condition was the proximate cause of her
fall and injuries. In her third issue, she challenges the conclusion that she failed to establish that Trejo knew about the dangerous condition and
failed to reduce or eliminate the risk. See Dalton, 2006 WL 2062936, at *2 (requiring invitee prove condition posed unreasonable risk of harm in
order to establish premises-liability claim).

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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 SAMANTHA HUY, Appellant                             On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-01356-CV          V.                      Trial Court Cause No. DC-12-05068-E.
                                                     Opinion delivered by Justice Schenck,
 ROBERT TREJO, Appellee                              Justices Lang and Fillmore participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee ROBERT TREJO recover his costs of this appeal from
appellant SAMANTHA HUY.


Judgment entered this 5th day of September, 2018.




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