                   NUMBER 13-18-00366-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG


LEONARD ALVAREZ, INDIVIDUALLY
AND AS NEXT FRIEND OF CASEY
ALVAREZ, MINOR CHILD,                                   Appellant,

                                v.

BROOKE R. SALAZAR-DAVIS,
INDIVIDUALLY, AND IKE DAVIS JR.,
INDIVIDUALLY AND AS NEXT FRIEND
OF GABRIEL DAVIS, MINOR CHILD,                          Appellees.


              On appeal from the 24th District Court
                   of Victoria County, Texas.


                  MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
         Memorandum Opinion by Chief Justice Contreras
       We issued a memorandum opinion in this case on August 8, 2019, affirming in part

and reversing and remanding in part the trial court’s judgment. The Davises, appellees,

subsequently filed a motion for rehearing. Without changing our previous disposition, we

deny the motion for rehearing, withdraw our earlier memorandum opinion and associated

judgment, and issue this substitute opinion and judgment in their place.

       Appellant Leonard Alvarez, individually and as next friend of his son, Casey

Alvarez, appeals from a summary judgment granted in favor of appellees Brooke R.

Salazar-Davis, individually, and Ike Davis Jr., individually and as next friend of his son

Gabriel Davis.    By one issue, Alvarez argues the trial court erred when it granted

appellees’ hybrid motion for summary judgment as to Alvarez’s claim for (1) premises

liability and (2) negligence. We affirm in part and reverse and remand in part.

                                    I.     BACKGROUND

       On November 15, 2015, Alvarez and his five-year-old son Casey visited the

residence owned by Salazar-Davis and Davis (the Davises) in Victoria, Texas. The

Davises invited guests over, including Alvarez, to watch a pay-per-view fight on TV, and

their children were also present at the residence. In the backyard, the Davises had a

campfire burning. Alvarez alleges that Ike told him the campfire would be supervised by

an adult; Ike claims this never happened. According to Alvarez, he and the Davises were

inside the garage watching the fight while Casey and Gabriel played outside the garage.

In his second amended petition, Alvarez alleges that, approximately thirty minutes after

they arrived, Casey ran into the garage screaming because Gabriel, the Davises’ four-

year-old son, “flung hot smoldering ashes in the direction of” Casey, which caused Casey

“to suffer severe burn injuries to various parts of his body.”



                                              2
       Alvarez brought suit against the Davises on theories of premises liability and

negligence. Specifically, Alvarez argued in his second amended petition the Davises

were each liable because: (1) they were “negligent in creating a condition which posed

an unreasonable risk of harm, to wit, an open fire and hot coals and hot ashes in a pit on

[their] premises, that was not supervised, not attended, not extinguished after use, nor

covered, nor barricaded;” and (2) they were negligent in the supervision of their son.

       In his deposition testimony, Alvarez was asked “how did Casey get hurt?” and he

responded:

       My son told me that him and another kid were standing [next] to a fire. He
       told me that the little boy had a shovel and that the little boy was poking at
       the fire. My son told me that he asked the boy to stop playing with the fire
       or poking at the fire with the shovel. And the little boy just swung the shovel,
       and the coals just flew on top of my son’s neck area.

Later in his deposition, Alvarez clarified that the “little boy” referenced was Gabriel. In the

Davises’ deposition testimony, they both stated that Gabriel was in the garage with them

when Casey suffered the injuries.

       The Davises filed a hybrid motion for traditional and no evidence summary

judgment and attached the deposition testimony of Alvarez, the Davises, and Brooke’s

father. Alvarez filed a response in opposition and included an affidavit by Miguel C.

Almaguer, M.D. After a hearing, the trial court granted appellees’ motion. Alvarez filed a

motion for new trial, which was denied by written order. This appeal followed.

                                     II.    DISCUSSION

       By his sole issue, Alvarez argues that the trial court erred when it granted summary

judgment in favor of the Davises.




                                              3
A.     Standard of Review

       We review the grant of summary judgment de novo. Ortega v. City Nat’l Bank, 97

S.W.3d 765, 771–72 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (op. on reh’g).

A motion for summary judgment may be brought on no evidence or traditional grounds.

See TEX. R. CIV. P. 166a(c), (i). We will affirm a summary judgment “if any of the theories

presented to the trial court and preserved for appellate review are meritorious.” Joe v.

Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

       A motion for no-evidence summary judgment is equivalent to a motion for pretrial

directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); Ortega,

97 S.W.3d at 772. Such a motion should be granted if there is no evidence of at least

one essential element of the claimant’s cause of action. Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008) (per curiam). The burden of producing evidence is entirely on the

non-movant; the movant has no burden to attach any evidence to the motion, and if the

non-movant produces evidence raising a genuine issue of material fact, summary

judgment is improper. See TEX. R. CIV. P. 166a(i). All that is required of the non-movant

is to produce a scintilla of probative evidence to raise a genuine issue of material fact on

the challenged elements. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

172 (Tex. 2003); Ortega, 97 S.W.3d at 772. “Less than a scintilla of evidence exists when

the evidence is ‘so weak as to do no more than create a mere surmise or suspicion of a

fact.’” Ortega, 97 S.W.3d at 772 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983)); see Forbes, 124 S.W.3d at 172. Conversely, more than a scintilla of

evidence exists when reasonable and fair-minded individuals could differ in their

conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772 (citing Transp. Ins.



                                             4
Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). We review the evidence presented by the

motion and response in the light most favorable to the non-movant, crediting such

evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. Tamez, 206 S.W.3d at 582; see City of Keller v. Wilson, 168

S.W.3d 802, 825, 827 (Tex. 2005).

       When reviewing a traditional motion for summary judgment, we must determine

whether the movant met its burden to establish that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant

bears the burden of proof, and all doubts about the existence of a genuine issue of

material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at

215. We take as true all evidence favorable to the non-movant, and we indulge every

reasonable inference and resolve any doubts in the non-movant’s favor.               Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

B.     Premises Liability

       Premises liability is a special form of negligence in which the premises owner’s

duty is generally determined by the plaintiff’s status as an invitee, licensee, or trespasser.

Taylor v. Louis, 349 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A

possessor of land owes the highest duty of care to an invitee, the next highest duty of

care to a licensee, and the lowest duty of care to a trespasser. See Mellon Mortg. Co. v.

Holder, 5 S.W.3d 654, 660 (Tex. 1999) (plurality op.) (Enoch, J., concurring). A licensee

is a person who enters the premises with the possessor’s express or implied permission,

but only for the licensee’s convenience or on business for someone other than the



                                              5
possessor. Knorpp v. Hale, 981 S.W.2d 469, 471 (Tex. App.—Texarkana 1998, no pet.).

The difference between a licensee and an invitee is that an invitee is on the premises for

the mutual benefit of herself and the possessor, while a licensee is there only for her own

purposes, not because of any business dealings with the possessor.                 Mayer v.

Willowbrook Plaza L.P., 278 S.W.3d 901, 910 (Tex. App.—Houston [14th Dist.] 2009, no

pet.). Under a premises liability theory, the duty owed to a licensee is not to injure the

licensee willfully, wantonly, or through gross negligent conduct. State Dep’t of Highways

& Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g); Almanza v.

Navar, 225 S.W.3d 14, 21 (Tex. App.—El Paso 2005, no pet.). When the possessor of

the premises has actual knowledge of a dangerous condition and the licensee does not,

the possessor owes a duty either to warn the licensee of the danger or to make the

condition reasonably safe. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.

2008) (per curiam); State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (per curiam).

       Here, it is undisputed that Alvarez and his son were licensees. The elements of a

cause of action for premises liability brought by a licensee are: (1) plaintiff was a licensee

(2) defendant was a possessor of the premises, (3) a condition on the premises posed an

unreasonable risk of harm, (4) the defendant had actual knowledge of the danger, (5) the

plaintiff did not have actual knowledge of the danger, (6) the defendant breached its duty

of ordinary care by both failing to adequately warn the plaintiff of the condition and failing

to make the condition reasonably safe, and (7) the defendant’s breach proximately

caused the plaintiff’s injury. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380,

391 (Tex. 2016); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974); County of Hidalgo

v. Brown, 79 S.W.3d 721, 727 & n.3 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.).



                                              6
If the licensee has the same knowledge about the dangerous condition as the licensor,

then no duty to the licensee exists. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709

(Tex. 2003) (per curiam).

        We focus our attention on the element of the premises liability claim which provides

that the licensee must lack actual knowledge of the dangerous condition for the claim to

be viable. See Sampson, 500 S.W.3d at 391; Wal-Mart Stores, 102 S.W.3d at 709.

        In response to the Davises’ hybrid motion, Alvarez acknowledged that he “knew

there was an open campfire on their premises” and that he admitted “in his deposition

testimony that yes, he knew about the campfire.” However, Alvarez argued that the

Davises were liable under a premises liability theory because the risk created by the

campfire was not open and obvious—i.e., that Alvarez did not have actual knowledge of

the danger—because the fire “was not supervised” and “not attended.” 1 In other words,

Alvarez argues that the lack of supervision is what made the campfire an unreasonably

dangerous condition and that Alvarez did not have actual knowledge of the danger

because he was informed the fire would be supervised. 2                         Alvarez’s argument is

misplaced.



        1   Alvarez makes the same argument on appeal.

        2   In his response to the Davises’ hybrid motion for summary judgment, Alvarez argued:

        While an open campfire is . . . open and obvious, [the Davises] failed to warn [Alvarez] that
        absolutely no one, not the [Davises] nor any other adult would be attending or supervising
        the campfire or that while this campfire was unattended, the [Davises] would not be
        supervising their own children.

In his appellate brief, Alvarez argues:

        The Davises claimed in their motion for summary judgment that they had no duty to warn
        party-goers of the campfire because it was open and obvious. However, [Casey’s] injuries
        were not caused by the mere fact of a campfire, they were caused by an unattended
        campfire—which was not “open and obvious.”

                                                     7
       Under Texas law, a person injured on another’s property has two potential causes

of action against the owner of the property: (1) a negligence claim for negligent activity

on the premises, or (2) a premises liability claim for an unreasonably dangerous condition

on the premises. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Although both

theories are based on negligence principles, they are independent theories that require

different elements of proof. Clayton W. Williams Jr., Inc. v. Olivo, 952 S.W.2d 523, 527

(Tex. 1997); see Taylor, 349 S.W.3d at 733. “Negligent-activity and premises liability

claims ‘involve closely related but distinct duty analyses.’” United Scaffolding, Inc. v.

Levine, 537 S.W.3d 463, 471 (Tex. 2017) (quoting W. Invs., Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005)).      “Underpinning the distinctions between these claims is the

principle that ‘negligent activity encompasses a malfeasance theory based on affirmative,

contemporaneous conduct by the owner that caused the injury, while premises liability

encompasses a nonfeasance theory based on the owner’s failure to take measures to

make the property safe.’” Id. (quoting Del Lago Partners v. Smith, 307 S.W.3d 762, 776

(Tex. 2010)). In other words, the plaintiff’s injury in a negligent activity claim must be the

result of a contemporaneous activity rather than a condition created by the activity.

Sampson, 500 S.W.3d at 388; State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006);

Keetch, 845 S.W.2d at 264. When the injury is the result of a condition of the premises,

the injured party can recover only under a premises liability theory. Brooks v. PRH Invs.,

303 S.W.3d 920, 923 (Tex. App.—Texarkana 2010, no pet.); Haney v. Jerry’s GM Ltd.,

346 S.W.3d 597, 600 (Tex. App.—El Paso 2009, no pet.).

       The malfeasance Alvarez complained of in regard to his premises liability claim

was the lack of supervision of the campfire and the child by the Davises. However, this



                                              8
Court has previously concluded that failure to supervise is a negligent activity theory, not

a premises liability theory. Univ. Preparatory Sch. v. Huitt, 941 S.W.2d 177, 181 (Tex.

App.—Corpus Christi–Edinburg 1996, writ denied) (concluding that plaintiff’s claim for

injuries suffered due to school’s contemporaneous failure to supervise the pool was a

negligent activity theory, not a premises liability theory). Thus, to the extent Alvarez’s

premises liability claim is based on the Davises’ alleged failure to supervise the campfire

or the child, the Davises were entitled to judgment as a matter of law on this claim. See

TEX. R. CIV. P. 166a(c). And to the extent Alvarez’s premises liability claim is based on

the dangerous condition of the campfire, we conclude the trial court properly granted no

evidence summary judgment because Alvarez failed to present any evidence that he

lacked actual knowledge of the condition. See Sampson, 500 S.W.3d at 391; Tennison,

509 S.W.2d at 562; Brown, 79 S.W.3d at 727 & n.3.

        We conclude the trial court did not err when it granted summary judgment to the

Davises as to Alvarez’s premises liability claim.

C.      Negligent Activity for Failure to Supervise Child

        Alvarez also argues the trial court erred when it granted summary judgment on his

claim for negligence against the Davises for a failure to supervise Gabriel. 3

        As noted, negligence and premises liability claims are separate and distinct

theories of recovery that require a plaintiff to prove different, albeit similar, elements to

secure judgment in their favor. United Scaffolding, 537 S.W.3d at 471. And, a person


        3
          To the extent Alvarez brought a claim for negligent activity for failure to supervise the campfire,
we note that Alvarez presents no argument or issue on appeal contending that the trial court erred if it
granted summary judgment on such a theory. Accordingly, we conclude that review of the trial court’s
summary judgment in favor of the Davises concerning a negligent-activity claim for failure to supervise the
campfire has been waived. See TEX. R. APP. P. 38.1; see also In re Tex. Dep’t of Transp., 218 S.W.3d 74,
78 (Tex. 2007) (orig. proceeding) (per curiam).


                                                     9
injured on another’s property may have either a negligence or a premises liability claim

against the property owner. Id.; Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640,

644 (Tex. 2016). Negligent activity is based on a general negligence theory. 4 See United

Scaffolding, 537 S.W.3d at 471 (“Generally, a plaintiff need only submit a general-

negligence question in support of its claim for a defendant’s liability under a negligent

activity theory.”); Occidental Chem. Corp., 478 S.W.3d at 644 (“When the injury is the

result of a contemporaneous, negligent activity on the property, ordinary negligence

principles apply.”); State v. San Miguel, 981 S.W.2d 342, 347–48 (Tex. App.—Houston

[14th Dist.] 1998), rev’d on other grounds, 2 S.W.3d 249 (Tex. 1999). In a negligent-

activity case, the plaintiff’s injury is caused by affirmative, contemporaneous conduct of

the defendant. Del Lago Partners, 307 S.W.3d at 776. Failure to supervise is a negligent-

activity theory. Univ. Preparatory Sch., 941 S.W.2d at 181.

        Here, Alvarez argued in his second amended petition that each of the Davises

failed to “train, educate, instruct, supervise and control” their child and that these failures

allowed their child to injure Casey with hot coals and ashes from the fire. Alvarez also

argued that “knowing that [Gabriel] was not trained, educated or instructed regarding the

danger of fire, hot coals and hot ashes, [the Davises were] negligent in allowing [Gabriel]

to remain unsupervised in the vicinity of the fire” and that Gabriel “did not appreciate the

potential danger.” Accordingly, Alvarez properly pleaded a cause of action for negligent

activity because he alleged Casey’s injuries occurred as a result of the Davises’




       4 “Although premises liability is itself a branch of negligence law, it is a ‘special form’ with different

elements that define a property owner or occupant’s duty with respect to those who enter the property.”
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). Thus, negligence claims are easier
to prove than premises-liability claims because premises-liability claims require proof of additional
elements. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385–86 (Tex. 2016).

                                                      10
affirmative, contemporaneous conduct of failing to supervise Gabriel.         See United

Scaffolding, 537 S.W.3d at 471; Del Lago Partners, 307 S.W.3d at 776; Univ. Preparatory

Sch., 941 S.W.2d at 181.

      To prove negligence the plaintiff must show: (1) the defendant owed a legal duty

to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately

caused the plaintiff’s injury. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404

(Tex. 2009). Without a legal duty, a defendant cannot be held liable for negligence.

Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). A duty is a legal

obligation that requires the defendant to conform to a certain standard of conduct to

protect others against unreasonable risks. See Midwest Empls. Cas. Co. v. Harpole, 293

S.W.3d 770, 776 (Tex. App.—San Antonio 2009, no pet.). A duty can arise either by

statute or by common law. See Graff v. Beard, 858 S.W.2d 918, 919–20 (Tex. 1993).

      1.     Duty

      “As a general rule, the plaintiff must establish the existence of a duty; the burden

is not on the defendant to show that it had no duty.” Humble Sand, 146 S.W.3d at 182.

“The existence of a duty is a question of law when all the essential facts are undisputed,

but when the evidence does not conclusively establish the pertinent facts or the

reasonable inferences to be drawn therefrom, the question becomes one of fact for the

jury.” Sanders, 217 S.W.3d at 15 (quoting Mitchell v. Mo.–Kan., Tex. R.R. Co., 786

S.W.2d 659, 662 (Tex. 1990)); Morris v. Tex. Parks & Wildlife Dep’t, 226 S.W.3d 720,

728–29 & n.9 (Tex. App.—Corpus Christi–Edinburg 2007, no pet.).            In a summary

judgment proceeding, if the facts support the imposition of a duty when viewed in the best




                                            11
light for the non-movant, summary judgment for the movant based on a claim of no duty

is inappropriate. Id.

        In Texas, minors are generally civilly responsible for their own torts. Newkumet v.

Allen, 230 S.W.3d 518, 521 (Tex. App.—Eastland 2007, no pet.); Sanders v. Herold, 217

S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Bailey v. C.S., 12 S.W.3d

159, 162–63 (Tex. App.—Dallas 2000, no pet). However, a parent may owe a duty to a

third party and be liable for the torts of a minor child “if the parent negligently allows his

child to act in a manner likely to harm another, if he gives his child a dangerous

instrumentality, or if he does not restrain a child known to have dangerous tendencies.”5

Prather v. Brandt, 981 S.W.2d 801, 806–07 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied); see Sanders, 217 S.W.3d at 15; Rodriguez, 902 S.W.2d at 42. A parent’s duty

to protect third parties from his child’s acts depends on whether the injury to the third party

is foreseeable. Prather, 981 S.W.2d at 807; Rodriguez, 902 S.W.2d at 43. Foreseeability

is evaluated by looking at the parent’s knowledge of, or consent to, or participation in the

child’s activity. Isbell, 983 S.W.2d at 339; Prather, 981 S.W.2d at 807; Rodriguez, 902

S.W.2d at 43. Actual knowledge of the child’s activities is not required if the parent should,

under the circumstances, reasonably anticipate the consequences of his or her actions.

Isbell, 983 S.W.2d at 339; Rodriguez, 902 S.W.2d at 42. Parental anticipation of danger

is necessary to establish liability. Isbell, 983 S.W.2d at 339; Rodriguez, 902 S.W.2d at

42.


        5
           Alvarez points to § 151.001(a)(2) of the Texas Family Code in support of his proposition that the
Davises owed a duty to supervise their child and that this duty extends to third parties. This section of the
family code, in pertinent part, states: “A parent of a child has . . . the duty of care, control, protection, and
reasonable discipline of the child.” TEX. FAM. CODE ANN. § 151.001(a)(2). Contrary to Alvarez’s argument,
this section of the family code is limited to the parent-child relationship and does not establish a duty for the
benefit of third parties. See Rodriguez v. Spencer, 902 S.W.2d 37, 40–41 (Tex. App.—Houston [1st Dist.]
1995, no writ).

                                                      12
      In his response to the Davises’ hybrid motion for summary judgment, Alvarez

argued that: “A reasonably prudent person would also probably know that if a young child

starts playing around and poking at a campfire, there is a likelihood that a child is going

to get hurt”; “A reasonably prudent person would not allow young, children free access to

an unattended campfire, anymore than would a reasonably prudent person allow young,

unsupervised children alone in a room with an unlocked and loaded shotgun”;

“Defendants also knew that there were young children present, playing freely and

unsupervised”; and “It was reasonably foreseeable that someone was going to get hurt

from that campfire that no one was watching.” In sum, Alvarez argued that the Davises

allowed Gabriel to play unsupervised near an unbarricaded campfire and that they should

have anticipated the danger this could pose. Alvarez’s deposition testimony, as well as

the Davises’ deposition testimony, provided support for this allegation. Thus, there was

evidence that the Davises had knowledge or consented to Gabriel’s activities, which

Alvarez alleges caused Casey’s injuries. See Isbell, 983 S.W.2d at 339; Prather, 981

S.W.2d at 807; Rodriguez, 902 S.W.2d at 43. However, the Davises disputed whether

Gabriel was near the fire and near Casey when Casey sustained the injuries—in their

deposition, the Davises state that Gabriel was in the garage with them when Casey was

injured. This raised an issue of fact as to the Davises’ knowledge or consent to Gabriel’s

activities and whether the injury to Casey was foreseeable. See Sanders, 217 S.W.3d at

15; Prather, 981 S.W.2d at 807; Rodriguez, 902 S.W.2d at 43. Viewing the facts in the

best light for Alvarez, we conclude there is a fact question as to whether the Davises

owed a duty to Casey and, therefore, summary judgment on a basis of no duty was




                                            13
inappropriate. 6 See Sanders, 217 S.W.3d at 15; Isbell, 983 S.W.2d at 339; Rodriguez,

902 S.W.2d at 42.

        2.      Breach of Duty

        To prove an action for negligence, the plaintiff must also establish the defendant

breached its legal duty. Nabors Drilling, 288 S.W.3d at 404. In most circumstances, a

defendant will be held to the standard of “ordinary care.” See Great Atl. & Pac. Tea Co.

v. Evans, 175 S.W.2d 249, 250–51 (Tex. 1943). Courts have held that the concept of

ordinary care is so elastic that it can meet all emergencies, and the amount of care to be

applied will depend on the circumstances presented. See Prather, 981 S.W.2d at 811;

Wendell v. Cent. Power & Light Co., 677 S.W.2d 610, 620 (Tex. App.—Corpus Christi–

Edinburg 1984, writ ref’d n.r.e.). The question of whether a defendant acted with ordinary

care is a question of fact for the jury. Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex.

App.—Dallas 2004, pet. denied); see Brown v. Goldstein, 685 S.W.2d 640, 641–42 (Tex.

1985); Borden, Inc. v. Price, 939 S.W.2d 247, 251 (Tex. App.—Amarillo 1997, writ

denied).     Alvarez alleged the Davises breached a duty when they failed to supervise

Gabriel while he was around an open and unbarricaded campfire. Whether the Davises

breached a duty by failing to act with ordinary care is a question of fact for the jury, and

therefore, the trial court could not have properly granted summary judgment on the basis

of no breach of duty. See Brown, 685 S.W.2d at 641–42; Caldwell, 125 S.W.3d at 793.




        6
          We note that a child under the age of five is incapable of committing negligence because the child
is “incapable of exercising those qualities of attention, perception, knowledge, experience, intelligence, and
judgment which [are] necessary to enable him [or her] to perceive the risk and to realize its unreasonable
character.” Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971).

                                                     14
        3.       Proximate Cause

        To prove an action for negligence, the plaintiff must establish the defendant’s

breach proximately caused the plaintiff’s injury. Nabors Drilling, 288 S.W.3d at 404.

Proximate cause is usually a question of fact unless the evidence is undisputed and only

one reasonable inference can be drawn. Ambrosio v. Carter’s Shooting Ctr., Inc., 20

S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The components

of proximate cause are (1) cause-in-fact and (2) foreseeability. Western Invs., Inc. v.

Urena, 162 S.W.3d 547, 551 (Tex. 2005); HIS Cedars Treatment Ctr. v. Mason, 143

S.W.3d 794, 798 (Tex. 2004).

        Here, the Davises argue that there is no evidence that their failure to supervise

Gabriel was the proximate cause of Casey’s injuries because there is no evidence that

Gabriel was anywhere near the fire at the time of the incident. The Davises point to their

deposition testimony in support of this contention; however, Alvarez stated in his

deposition that Casey told him the day after the accident that Gabriel had flung hot coals

towards him with a shovel. Additionally, in response to the Davises’ hybrid motion,

Alvarez attached an affidavit from Enrique C. Almaguer, M.D.                          In his affidavit, Dr.

Almaguer states that he examined Casey’s burns and the pictures from Casey’s medical

records from the hospital. Dr. Almaguer noted that, in his opinion, it is “more likely than

not, given the location, (the back of Casey’s neck), and extent of Casey’s burn injuries,

[that] the causation of Casey’s burn injuries are more consistent with someone flinging a

shovel full of hot ashes/hot coals at [Casey] as he turned away from the fire.” 7 This


         7 The Davises objected to Dr. Almaguer’s affidavit in the trial court because Dr. Almaguer “is not

qualified to opine on causation, his methodology is not reliable, and his opinions are conclusory and
unsupported.” The Davises make the same arguments on appeal; however, the record does not contain a
ruling on their objection. A “trial court’s ruling on an objection to summary judgment evidence is not implicit

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evidence raises a fact issue as to whether the Davises’ alleged breach was the proximate

cause of Casey’s injuries. See Ambrosio, 20 S.W.3d at 266. Therefore, the trial court

erred if it granted summary judgment on the basis that there was no evidence of proximate

cause. See TEX. R. CIV. P. 166a(c).

        4.      Summary

        The evidence is conflicted as to whether Casey was outside with Gabriel when

Casey suffered his injuries. As a result, Alvarez raised a fact issue precluding summary

judgment regarding his claim against the Davises for negligence arising out of their failure

to supervise Gabriel. Therefore, the trial court erred when it granted summary judgment

to the Davises on that claim.

        We sustain Alvarez’s second issue.

                                           III.    CONCLUSION

        We reverse the trial court’s summary judgment as to Alvarez’s claim against the

Davises for the alleged negligence for their failure to supervise Gabriel. We affirm the

remainder of the judgment and remand to the trial court for further proceedings consistent

with this opinion.


                                                                            DORI CONTRERAS
                                                                            Chief Justice

Delivered and filed the
24th day of October, 2019.




in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being
understood’ from the ruling on the motion for summary judgment.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d
161, 165–66 (Tex. 2018) (quoting Well Sols. Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio
2000, no pet.)). Here, the Davises never obtained a ruling on their objection to Dr. Almaguer’s affidavit,
and they never objected to the trial court’s failure to rule. See TEX. R. APP. P. 33.1(a)(2); Seim, 551 S.W.3d
at 165–66.

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