Affirmed and Memorandum Opinion filed October 2, 2018




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00936-CV

                         PATRICIA ZAPPA, Appellant
                                         V.
  IKEA HOLDINGS US, INC., IKEA PROPERTY, INC., AND IKEA U.S.
                     WEST, LLC, Appellees

                    On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-71460

                 MEMORANDUM                       OPINION

      In this premises liability case, appellant contends that the trial court erred in
granting appellees’ motion for summary judgment because appellant presented
evidence that the necessary-use exception discussed in Austin v. Kroger, 465
S.W.3d 193 (Tex. 2015), precludes summary judgment even though the allegedly
dangerous condition was open and obvious and appellant was aware of it. Because
appellees conclusively established that appellant could have used an alternative
route to avoid the allegedly dangerous condition, we hold that the necessary-use
exception does not apply and therefore the trial court did not err. We affirm.

                                      I. BACKGROUND

       Appellant Patricia Zappa alleges that on December 10, 2013, she was exiting
an IKEA store in Houston with a flatbed cart containing her purchases. IKEA had
erected barriers around the exit which prevented Zappa from pushing the cart to the
parking lot where her car was parked.1 Zappa decided to remove her purchases
from the cart, a few at a time, and carry them to her car by walking through the
small opening between the barriers. In attempting to pass through the barriers on
her third trip to the car, Zappa was injured when her right leg became trapped
between the two horizontal bars of a barrier while her left leg continued through
the small opening, causing a twisting pressure and fracturing her right knee.

       In November 2015, Zappa sued appellees IKEA Holdings US, Inc., IKEA
Property, Inc., and IKEA U.S. West, LLC (collectively, IKEA), alleging
negligence based on premises liability. IKEA does not dispute that it owns and
operates the store. IKEA filed a hybrid no-evidence and traditional summary
judgment motion on several elements of Zappa’s premises liability claim. Relevant
here, IKEA argues that it owed no duty to Zappa because she admitted she was
aware of the allegedly dangerous condition. Zappa filed a response and attached
several exhibits, including photographs of the barriers and Zappa’s affidavit. IKEA
filed a reply including excerpts of Zappa’s deposition testimony and an affidavit of
an IKEA employee responsible for customer safety.

       After a hearing, the trial court signed an order on October 30, 2017, granting
IKEA’s summary judgment motion and dismissing Zappa’s claims with prejudice.

       1
         IKEA refers to the “barriers” as “separation bars.” For consistency, we will use Zappa’s
chosen term. Zappa presented evidence that the space between the barriers was 19.5 inches.

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                               II. ISSUES ON APPEAL

      In four issues, Zappa contends that she presented sufficient summary
judgment evidence to create a genuine issue of material fact on all the elements of
a premises liability claim. Zappa also contends that she presented sufficient
evidence to invoke applicable law regarding the “necessary-use” exception to the
general rule that a premises owner has no duty to warn or make safe a dangerous
condition on the premises that is open and obvious or known to the invitee. Zappa
argues that given these circumstances, a jury should be allowed to consider each
party’s proportionate responsibility for negligence. Because the sufficiency of the
evidence to support the necessary-use exception is dispositive, we confine our
review to that issue. See Tex. R. App. P. 47.1.

A.    Standards of Review

      We review de novo the trial court’s grant of a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). In reviewing either a traditional or no-evidence summary
judgment motion, we must take as true all evidence favorable to the non-movant
and draw every reasonable inference and resolve all doubts in favor of the non-
movant. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23–24
(Tex. 2000) (per curiam); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655
(Tex. App.—Houston [14th Dist.] 2008, pet. denied).

      In a traditional motion for summary judgment, the movant must 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). If the movant’s motion and
evidence facially establish its right to judgment as a matter of law, the burden
shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat
summary judgment. See Willrich, 28 S.W.3d at 23.
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      In a no-evidence motion, a party may, without presenting summary
judgment evidence, move for summary judgment on the ground that no evidence
exists of one or more essential elements of a claim or defense on which the adverse
party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must
grant a no-evidence summary judgment motion unless the non-movant produces
competent summary judgment evidence that raises a genuine issue of material fact
on each element specified in the motion. Id.; Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006).

      To determine if the non-movant raises a fact issue, we review the evidence
in the light most favorable to the non-movant, crediting favorable evidence if
reasonable jurors could do so, and disregarding contrary evidence unless
reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). A no-evidence challenge 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. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013).

      We do not consider as grounds for reversal issues not expressly presented to
the trial court in response to a summary judgment motion. Tex. R. Civ. P. 166a(c);
Lopez v. Ensign U.S. So. Drilling, LLC, 524 S.W.3d 836, 841 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). When, as here, the trial court does not specify
the grounds for its summary judgment, we must affirm if any of the theories
presented to the trial court and preserved for appellate review are meritorious.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

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B.    A Premises Owner’s Duty to Invitees

      Generally, a premises owner has a duty to either make safe or warn invitees
of concealed dangers of which the premises owner is or should be aware, but the
invitee is not. Austin v. Kroger, 465 S.W.3d 193, 201 (Tex. 2015). However, a
premises owner has no duty to protect an invitee against a dangerous condition that
is open and obvious or known to the invitee. Id. This general rule recognizes that a
landowner is not an insurer of its invitees’ safety and has no duty to take safety
measures beyond those that an ordinary, reasonable premises owner would take.
Id. at 203–04.

      One exception to this no-duty rule applies when the facts demonstrate that
(1) it was necessary that the invitee use the unreasonably dangerous premises and
(2) the landowner should have anticipated that the invitee was unable to avoid the
unreasonable risks despite the invitee’s awareness of them. Id. at 207. The Austin
court explained that this exception is drawn from the court’s decision in Parker v.
Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). See Austin, 465 S.W.3d at 207.
In Parker, the supreme court abolished the no-duty rule, concluding that the
circumstances surrounding a plaintiff’s conduct after becoming aware of an
allegedly dangerous condition—even if the condition was open and obvious—were
matters bearing upon the reasonableness of the plaintiff’s conduct under principles
of contributory negligence and “should not affect the defendant’s duty.” Id.
(discussing Parker, 565 S.W.2d at 520). Nevertheless, subsequent supreme court
decisions “repeatedly restated and applied the general no-duty rule in the
landowner-invitee context, without overruling the decision in Parker.” Id.

      The Austin court resolved the arguably conflicting precedent by reaffirming
the general no-duty rule and retaining Parker “as an example of an exception that
recognizes a landowner’s duty to make its premises safe when, despite an

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awareness of the risks, it is necessary that the invitee use the dangerous premises
and the landowner should have anticipated that the invitee is unable to take
measures to avoid the risk.” Id. at 208. Accordingly, when the necessary-use
exception applies, “the plaintiff’s awareness of the risk does not relieve the
landowner’s duty to make the premises safe, but it remains relevant to the issue of
proportionate responsibility.” Id.

C.    Application of the Law to the Summary Judgment Evidence

      IKEA moved for summary judgment on the grounds that (1) Zappa had no
evidence that the alleged condition with the barriers posed an unreasonable risk of
harm, (2) Zappa’s knowledge of the alleged condition nullified any duty IKEA
owed to her, and (3) Zappa had no evidence that IKEA had actual or constructive
knowledge of the alleged condition. In response, Zappa admitted that she was
aware of the barriers because she saw them, and she concedes that the alleged
condition was open and obvious. Applying Austin, IKEA’s duty to Zappa was
negated by these admissions unless Zappa presented some evidence that the
necessary-use exception applied. See Austin, 465 S.W.3d at 198, 208; Nethery v.
Turco, No. 05-16-00680-CV, 2017 WL 2774448, at *2–3 (Tex. App.—Dallas June
27, 2017, no pet.) (mem. op.); Phillips v. Abraham, 517 S.W.3d 355, 360–61 (Tex.
App.—Houston [14th Dist.] 2017, no pet.).

      1.     Zappa has not waived the issue of whether the necessary-use
             exception applies.
      As an initial matter, IKEA contends that Zappa waived any argument
concerning the necessary-use exception because she never raised it in response to
IKEA’s summary judgment motion. We disagree. In her response, Zappa
acknowledged that despite her awareness of the barriers, she attempted to carry her
purchased items though the barriers to her car because “she had to do so.” In her

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affidavit, Zappa averred that the barriers “completely surrounded” the store exit
and “formed a perimeter” around it. Zappa also expressly cited Austin in her
response and argued that the necessary-use exception applied because the small
opening in the barriers “was the only way out.” We reject IKEA’s argument that
Zappa waived this issue and address it on the merits.

      2.        IKEA’s evidence conclusively establishes that the necessary-use
                exception does not apply.

      Zappa testified that the barriers completely surrounded the exit area and she
decided to unload her cart and carry the items through the barriers because she had
no other way to get them to her car. She also provided photographs of the barriers
and the distance between them.

      To rebut Zappa’s evidence, IKEA submitted the affidavit Edwin Vela, an
Interim Safety and Security Coworker at the IKEA store. Vela stated that as a
Safety and Security Coworker, he was responsible for “ensur[ing] a safe and secure
environment for all visitors, customers, contractors and coworkers.” Vela also
stated that he was an IKEA employee in December 2013, and that he was familiar
with the layout of the store front and parking lot/loading zone area at the time of
the incident.

      Vela averred that in December 2013, “a large route for visitors and their
carts, strollers and wheelchairs that led from the store to the parking lot/loading
zone area existed in the same area where the incident occurred.” Vela stated that
this route “was the main means of ingress and egress between the store and the
parking lot/loading zone area.” Vela also attached two photographs which he stated
were accurate representations of the store front in December 2013. The
photographs show a sliding gate on one of the barriers that is opened to provide a
large exit area near the store’s doorway.

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      Relying on Parker and Austin, Zappa argues that open and obvious
conditions known to invitees will not always prevent recovery when an invitee
asserts the necessary use of a dangerous condition, and when there are
contradictory assertions by both parties, a jury should be allowed to apportion each
party’s proportionate responsibility. As the Austin court made clear, however, the
premises owner owes no duty to the invitee unless the necessary-use exception or
another exception applies. See 465 S.W.3d at 198, 208; see also Phillips, 517
S.W.3d at 361 n.3. Under the applicable standard of review, we conclude that the
summary-judgment evidence proves as a matter of law that the necessary-use
exception does not apply because it was not necessary that Zappa use the allegedly
unreasonably dangerous premises. See Austin, 465 S.W.3d at 208.

      Zappa did not object to Vela’s affidavit or present any evidence
controverting either Vela’s statements or the photographs depicting the availability
of an alternative route that allows customers to avoid the barriers. And, although
Zappa’s photographs show the placement, design, and spacing of some of the
barriers, none of Zappa’s photographs depict the proximity of the barriers to any
doorways or exit ramps as do the photographs submitted by IKEA. Nor did Zappa
testify that the large opening shown in Vela’s photographs was closed or was
otherwise inaccessible to her. Indeed, Zappa’s own evidence reflects that an
alternative route existed because she testified that she took a different route
through the parking lot to return to the store after her injury because she did not
want to pass through the barriers.

      Because the evidence establishes that it was not necessary that Zappa pass
through the barriers to get to her car, the necessary-use exception does not apply.
See Phillips, 517 S.W.3d at 361–62 (holding necessary-use exception did not apply
when evidence established plaintiff knew of allegedly unreasonably dangerous

                                         8
condition on portion of driveway and it was not necessary for him to walk over or
through the portion of the driveway containing the condition); Lopez, 524 S.W.3d
at 850 (holding necessary-use exception did not preclude summary judgment
against plaintiff who was injured on stairway when plaintiff failed to present
evidence establishing that alternate route was not available or was unreasonably
dangerous, and other evidence showed that plaintiff could have avoided risk posed
by stairway by using an alternate stairway).

      Therefore, assuming without deciding that the barriers were a dangerous
condition and that IKEA was or should have been aware of the condition, IKEA
had no duty to warn or make safe a condition that was both open and obvious and
known to Zappa because the evidence conclusively established that an alternative
route existed that Zappa could have used to avoid passing through the barriers. See
Austin, 465 S.W.3d at 204, 208. We hold that the trial court did not err in granting
IKEA’s summary judgment motion on this basis.

                                 III. CONCLUSION

      We overrule Zappa’s issue concerning the applicability of the necessary-use
exception and affirm the trial court’s judgment.




                                /s/            Ken Wise
                                               Justice


Panel consists of Justices Donovan, Wise, and Jewell.




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