                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00149-CV


MARGARET KINSLEY,                                                    APPELLANT
INDIVIDUALLY AND ON BEHALF
OF LADDIE FRANCES KINSLEY,
DECEASED

                                        V.

CARTWRIGHT’S RANCH HOUSE,                                            APPELLEES
LLC AND JOHN CLAYTON
CARTWRIGHT

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         FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. 2013-71549-431

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                       MEMORANDUM OPINION1

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                                 I. INTRODUCTION

     Appellee   John   Clayton     Cartwright     owns   and   operates   Appellee

Cartwright’s Ranch House, LLC, (CRH) a restaurant in Denton, Texas. One
     1
      See Tex. R. App. P. 47.4.
morning, after Margaret and Laddie Kinsley ate breakfast together at CRH, as

Laddie negotiated his walker off the curb in front of CRH and into the parking lot

on the passenger-side of the couple’s vehicle, he fell.        He was taken to the

hospital where he died a few days later. Appellant Margaret Kinsley, individually

and on behalf of Laddie Frances Kinsley, deceased, filed suit against Appellees

asserting claims of negligence and negligence per se and asserting a statutory

civil rights claim.2 Following a trial, a jury returned a take-nothing verdict, and the

trial court entered judgment on the jury’s verdict. Margaret perfected this appeal

and raises two issues. She claims that charge error exists, asserting that the trial

court misstated the law in the negligence questions submitted to the jury, and

she challenges the directed verdict on her negligence per se claim. For the

reasons set forth below, we will affirm the trial court’s judgment.

                             II. FACTUAL BACKGROUND

      Margaret drove Laddie, her husband of over forty years, to eat breakfast at

CRH. CRH security cameras recorded the events that occurred both inside and

outside the restaurant. Margaret parked in a handicapped spot directly in front of

the restaurant. The front end of the Kinsleys’ vehicle was pointed at the front

door of CRH. Margaret exited the driver’s side of the vehicle, retrieved a walker

from the rear of the vehicle, and brought it to Laddie before he exited the

passenger side.     Laddie was wearing a boot on one foot because of a toe

      2
       Margaret does not challenge on appeal the jury’s finding that no civil rights
deprivation had occurred against Laddie as a person with a disability.

                                          2
surgery. Laddie used the walker, and Margaret further assisted him by using a

gait belt provided by Laddie’s physical therapist. The duo proceeded a short

distance through the parking lot, up a handicapped ramp, and onto the sidewalk

in front of CRH.

      According to Margaret, the sidewalk area in front of the restaurant was

“littered” with wooden booths, tables, and chairs for outdoor seating for CRH’s

guests. The outdoor furniture was owned by CRH, was arranged daily on the

sidewalk area by CRH, and provided an additional twenty-eight seats for patrons.

Margaret described the area as an obstacle course, requiring Laddie to

maneuver around furniture and requiring Margaret to move a chair.

      After the Kinsleys were seated, Margaret located CRH’s owner and

manager, Cartwright, and complained that “it’s a shame that a veteran would

have to go through this and that he had served his country and anyone that was

disabled shouldn’t have to go through that path.”          Cartwright testified that

Margaret told him that her husband had not been able to step up onto the curb in

front of their vehicle because of the furniture on the sidewalk area and asked him

to move it. Margaret denied asking Cartwright to move the furniture in front of

their vehicle.

      While the Kinsleys ate, Cartwright moved the outdoor tables that were

directly in front of the Kinsleys’ parked vehicle so that no furniture blocked access

to either side of the Kinsleys’ vehicle; one small round table remained directly in

front of the license plate of the Kinsleys’ vehicle. Upon exiting CRH, Laddie––

                                         3
who was in front of Margaret, using his walker while Margaret held the gait belt––

did not go to his left through the patio furniture area to the handicap ramp but

instead exited in a straight line from the front door of CRH to the curb at the front

end of the passenger side of the couple’s vehicle. As Laddie moved the front

legs of his walker forward off the curb, the back legs of the walker remained up

on the curb. Laddie hung onto the front of the walker, which was lower, and fell

forward, landing face-first on the ground. Margaret, who was using the gait belt,

was pulled forward on top of Laddie.

      Video footage from CRH’s security cameras was played for the jury. The

footage showed the Kinsleys’ trip from their car into the restaurant, the Kinsleys

being seated inside CRH, Cartwright moving the tables as he said Margaret had

requested, the Kinsleys exiting CRH, and Laddie’s fall.

                     III. ANY CHARGE ERROR WAS HARMLESS

                            A. The Parties’ Positions

      In her first issue, Margaret asserts that the trial court’s submission of

premises liability negligence instruction (d) in jury questions 1 and 5 was

erroneous. Margaret asserts that instruction (d) improperly shifted the burden to

her as the plaintiff to disprove that the condition was not open and obvious.

Margaret argues that no instruction concerning “open and obvious” should have

been given at all but that if given, such an instruction should have focused on

whether the risk of harm from the condition was open and obvious, not on

whether the condition itself was open and obvious.

                                         4
      Because it was undisputed that Margaret and Laddie were invitees, jury

questions 1 and 53 provided, in pertinent part:

      Question 1:

           Did the negligence, if any, of those named below proximately
      cause the death of Laddie Kinsley?

           With respect to the condition of the premises, Cartwright’s
      Ranch House, LLC, was negligent if:

            a.      the condition posed an unreasonable risk of harm, and

            b.    Cartwright’s Ranch House, LLC knew or reasonably
      should have known of the danger, and

             c.    Cartwright’s Ranch House, LLC failed to exercise
      ordinary care to protect Laddie Kinsley from the danger, by failing to
      adequately warn Laddie Kinsley of the condition or failing to make
      that condition reasonably safe, and

           d.    The condition of the premises that              posed    an
      unreasonable risk of harm was not open and obvious.

      Margaret’s position on what constituted “the condition of the premises” has

alternated.4 Margaret pleaded that the condition of the premises that posed the

unreasonable risk of harm was, “i.e., the seating arrangements on the sidewalk.”

Margaret elicited expert opinion testimony at trial that “as a result of the

placement of the furniture[, CRH] failed to make or maintain the sidewalk in a

      3
       Questions 1 and 5 are identical except that question 1 asks whether
negligence caused the death of Laddie while question 5 asks whether negligence
caused injury to Margaret.
      4
        This alternating position on the premises liability claim appears to be the
result of the trial court’s directed verdict on the negligence per se claims, which
appear to have been the focus of most of Margaret’s trial efforts.

                                         5
safe condition.”   In her brief, Margaret argues that the curb constituted the

condition of the premises.5       In her reply brief, Margaret asserts that “the

dangerous condition of the premises is the furniture placed on the public

sidewalk by Appellees––not the curb.” At oral argument, Margaret argued that


      5
       Margaret’s brief argues:

             First, if an instruction about anything being “open and obvious”
      was properly submitted at all (to which Kinsley does not concede), it
      would only be about the open and obvious nature of the risk of harm,
      (or danger) posed by the condition, not the condition itself. Austin
      [v. Kroger], 465 S.W.3d [193,] 203 [(Tex. 2015)]. This is illustrated in
      Austin’s discussion of the necessary use doctrine, an exception that
      recognizes a landowner’s duty to make its premises safe when,
      “despite an 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. Thus, it is irrelevant to determine whether or not
      the condition of the curb was open and obvious to the Kinsleys. The
      inquiry, if made, should have been whether the risk posed by the
      curb was open and obvious to the Kinsleys.

             The only evidence regarding the curb was Margaret’s
      testimony that Laddie fell when he was navigating the curb, she
      could see the curb, she and Laddie knew that the curb was there,
      the curb itself was “open and obvious,” and she knew that Laddie
      would have to step down the curb to get to the car. (3RR:23–24)
      There is no evidence of the height of the curb, the width of the curb,
      or any of its characteristics. There was no photograph of the curb
      admitted. Moreover, there is no evidence that Laddie, the one who
      chose the path to the car upon exiting the restaurant, had any
      appreciation for the height of the curb, the width of the curb, or the
      danger in attempting to cross over the curb with his walker. That the
      curb itself was open and obvious was not in dispute. There was no
      evidence whether Laddie or Margaret appreciated an “open and
      obvious” risk of harm posed by the curb, which is the only issue that
      was relevant to whether there was a concealed and unreasonable
      risk. [Emphasis in original].

                                         6
instruction (d) improperly placed the burden on her to prove that the curb was not

open and obvious but that she had met her burden under instruction (a) of

showing that the condition of the outdoor seating posed an unreasonable risk of

harm.

        Appellees assert that, even assuming error in the court’s charge as argued

by Margaret,6 any error was harmless in this case. According to Appellees, if the

condition of the premises was the seating arrangement on the sidewalk, then as

a matter of law, any negligence of Appellees did not proximately cause the death

of Laddie or the injury to Margaret because “there was no evidence whatsoever

that any action or inaction on the part of Appellees [with regard to the outdoor

seating arrangement] was a proximate cause of the accident.”            And if the

condition of the premises was the curb, then “Appellees owed no duty to Mr. and

Mrs. Kinsley as a matter of law” because “Appellees did not control the premises

upon which the accident occurred (a public curb in front of the restaurant).”

                             B. Standard of Review

        The standard of review for an allegation of jury charge error is “abuse of

discretion.” Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.

1990). A trial court abuses its discretion by acting arbitrarily, unreasonably, or

without consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56,


       Margaret’s error arguments focus on the cases of Austin v. Kroger, 465
        6

S.W.3d 193 (Tex. 2015), and Parker v. Highland Park, Inc., 565 S.W.2d 512
(Tex. 1978).

                                         7
62 (Tex. 2003).       An appellate court will not reverse a judgment for

a charge error unless that error was harmful—it probably caused the rendition of

an improper judgment or probably prevented the appellant from properly

presenting the case to the court of appeals. See Tex. R. App. P. 44.1(a); Thota

v. Young, 366 S.W.3d 678, 687 (Tex. 2012).

                                  C. Analysis

 1. The Law Concerning Proximate Cause and Ownership of the Premises
                     in a Premises Liability Claim

      To prevail on a premises liability claim against a property owner, an injured

invitee must establish four elements:       (1) the property owner had actual or

constructive knowledge of the condition causing the injury; (2) the condition

posed an unreasonable risk of harm; (3) the property owner failed to take

reasonable care to reduce or eliminate the risk; and (4) the property owner’s

failure to use reasonable care to reduce or eliminate the risk was the proximate

cause of injuries to the invitee. Henkel v. Norman, 441 S.W.3d 249, 251–52

(Tex. 2014) (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000));

Aranda v. Willie Ltd. P’ship, No. 03-15-00670-CV, 2016 WL 3136884, at *1 (Tex.

App.—Austin June 1, 2016, no pet.) (mem. op.).

      Concerning the proximate cause element, even in a premises liability case,

this element has two components: foreseeability and cause-in-fact. See LMB,

Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (citing Marathon Corp. v.

Pitzner, 106 S.W.3d 724, 727 (Tex. 2003)). The test for cause-in-fact, or “but-for”


                                        8
causation, is whether (1) the act or omission was a substantial factor in causing

the injury and (2) without the act or omission the harm would not have occurred.

Id. That is, to prevail at trial in this premise liability case, Margaret bore the

burden of proof to establish that the accident—Laddie’s fall—was a foreseeable

result of a failure by Appellees to use reasonable care to reduce or eliminate an

unreasonably dangerous premises condition.         Mere proof that an accident

occurred does not constitute either evidence of an unreasonably dangerous

condition or proof that any act or omission by the defendant was a substantial

factor in causing the plaintiff’s injuries.   See id. (holding “[m]ere proof that

Ernestina Moreno was injured in LMB’s parking lot is not proof of

such proximate cause”); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551–52 (Tex.

2005) (holding summary judgment proper when no evidence existed that any of

premises owner’s “acts or omissions were a substantial factor in causing”

plaintiff’s injuries); Sw. Key Program, Inc. v. Gil–Perez, 81 S.W.3d 269, 274 (Tex.

2002).

      Concerning ownership of the premises, “to 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. Tex.

Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999); Strunk v. Belt Line Rd.

Realty Co., 225 S.W.3d 91, 100 (Tex. App.––El Paso 2005, no pet.) (recognizing

“plaintiff has the burden of proving that the injury occurred on premises owned or

occupied by the defendant before duty can be imposed [in a premises liability

                                         9
case]”).   A plaintiff must establish that the defendant had control over and

responsibility for the premises before a duty can be imposed on the defendant.

See Cty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). A property

owner has no duty to ensure the safety of persons who leave the owner’s

property and will not be liable for injuries that occur off the owner’s property. See

Hyde v. Hoerauf, 337 S.W.3d 431, 436–37 (Tex. App.—Texarkana 2011, no

pet.); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762–63 (Tex.

App.––Houston [1st Dist.] 1994, no writ); see also Alarcon v. Bed, Bath &

Beyond, Inc., No. 04-03-00551-CV, 2004 WL 1453465, at *1 (Tex. App.—San

Antonio June 30, 2004, no pet.) (mem. op.) (“[A]s a rule, to prevail on a premises

liability claim a plaintiff must prove that the defendant possessed—that is, owned,

occupied, or controlled—the premise where injury occurred.”).

                2. Application of the Law to the Present Facts

      If the condition of the premises that posed an unreasonable risk of harm

was the arrangement of the outdoor furniture on the patio area, the evidence

conclusively establishes, and in fact the parties agree on appeal, that Laddie’s

injuries leading to his death occurred as he maneuvered the front legs of his

walker off the curb in front of CRH and fell and that Margaret’s injuries occurred

when she was pulled down on top of Laddie by the gait belt. That is, neither

Laddie nor Margaret exited CRH the way they entered; they did not backtrack

through the sidewalk patio area but instead exited straight out CRH’s front door

and walked approximately six to eight feet to the curb where the front end of their

                                         10
vehicle was parked pointed at CRH’s front door. Laddie then maneuvered his

walker off that curb on the passenger side of the couple’s vehicle.         Neither

Laddie nor Margaret walked through the furniture portion of the patio area;

neither Laddie nor Margaret encountered or touched any outdoor furniture when

they exited CRH. The mere fact that an accident occurred does not constitute

either evidence of an unreasonably dangerous condition posed by the outdoor

furniture or proof that any act or omission by CRH with respect to the outdoor

furniture was a substantial factor in causing Laddie’s death and Margaret’s

injuries or that without the act or omission by CRH, Laddie’s death and

Margaret’s injuries would not have occurred.      See LMB, 201 S.W.3d at 688

(holding “[m]ere proof that Ernestina Moreno was injured in LMB’s parking lot

is not proof of such proximate cause”); Seideneck v. Cal Bayreuther Assocs., 451

S.W.2d 752, 754 (Tex. 1970) (recognizing plaintiff alleging premises liability claim

must show that plaintiff’s injury resulted from his contact with condition posing

unreasonable risk of harm); Mize v. Lavender, 407 S.W.2d 856, 859 (Tex. Civ.

App.––Eastland 1966, writ ref’d n.r.e.) (upholding summary judgment for

restaurant owner in premises liability case because no evidence existed that

alleged unreasonable condition—thick rug—encountered by invitee was a

proximate cause of plaintiff’s fall).   We hold that if the condition posing the

unreasonable risk of harm was the arrangement of the outdoor furniture on the

patio area, then we agree with Appellees that as a matter of law that condition

did not proximately cause Laddie’s death or Margaret’s injuries.         Therefore,

                                         11
because as a matter of law the jury could not have found proximate cause in

question 1 or question 5 if the condition was the arrangement of the outdoor

furniture on the patio area, any error in the submission of instruction (d) in

questions 1 and 5 was harmless; that is, in light of the record as a whole, any

error in the submission of instruction (d) was not reasonably calculated to cause

and did not probably cause rendition of an improper judgment. See Tex. R. App.

P. 44.1(a); Thota, 366 S.W.3d at 688; Reinhart v. Young, 906 S.W.2d 471, 473

(Tex. 1995) (explaining jury charge error reversible only if “in the light of the

entire record, it was reasonably calculated to and probably did cause the

rendition of an improper judgment”); Bank of Am. v. Jeff Taylor LLC, 358 S.W.3d

848, 865 (Tex. App.—Tyler 2012, no pet.) (explaining that regardless of whether

issue is a question of law or fact, if the issue is established as a matter of law,

there is no harm on appeal when the trial court charges the jury on the issue, the

jury answers it correctly, and the trial court’s judgment reflects the correct

finding).

       If the condition of the premises that posed the unreasonable risk of harm

was the curb, the evidence conclusively establishes that the curb was not owned

or maintained by Appellees. The only evidence in the record establishes that

either the City of Denton owns the area where Laddie fell or that it is part of the

State Highway System. We agree with Appellees that if the condition of the

premises that posed an unreasonable risk of harm was the curb, then as a matter

of law CRH owed no duty to Laddie and Margaret because CRH did not own,

                                        12
occupy, or control the curb where Laddie fell and where Margaret fell on top of

him.   See, e.g., Cty. of Cameron, 80 S.W.3d at 556 (recognizing plaintiff in

premises liability suit must establish defendant possessed premises before duty

will arise); Wilson, 8 S.W.3d at 635 (recognizing plaintiff in premises liability case

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

premises where injury occurred); Strunk, 225 S.W.3d at 100 (same); see also

Hyde, 337 S.W.3d at 436–37 (holding property owner owed no duty when no

injury occurred on property owned, occupied, or controlled by him; injury had

occurred on nearby street); Alarcon, 2004 WL 1453465, at *1 (“[A]s a rule, to

prevail on a premises liability claim a plaintiff must prove that the defendant

possessed—that is, owned, occupied, or controlled—the premise where the

injury occurred.”).   Therefore, if the condition of the premises that posed the

unreasonable risk of harm was the curb, because no evidence exists that CRH

owns, occupies, or controls the curb where Laddie fell and sustained the injuries

leading to his death and where Margaret fell on top of him, as a matter of law

CRH owes no duty to make the curb safe or to warn of the unreasonably

dangerous condition of the curb. See, e.g., Cty. of Cameron, 80 S.W.3d at 556;

Wilson, 8 S.W.3d at 635. Therefore, because as a matter of law the jury could

not have found in questions 1 and 5 that CRH owed any duty to Margaret and

Laddie to make the curb safe or to warn of the unreasonable risk of danger

posed by the curb, any error in the submission of instruction (d) in question 1 and



                                         13
5 was harmless.     See Tex. R. App. P. 44.1(a); Thota, 366 S.W.3d at 688;

Reinhart, 906 S.W.2d at 473; Bank of Am., 358 S.W.3d at 865.

      We overrule Margaret’s first issue.

  IV. NO ERROR IN GRANTING DIRECTED VERDICT ON NEGLIGENCE PER SE CLAIM

      In her second issue, Margaret complains that the trial court erred by

granting a directed verdict on her negligence per se claim “based on Appellees’

obstruction of a public sidewalk, a violation of both a Denton municipal ordinance

and the Texas Human Resources Code.”7

                            A. Standard of Review

      A trial court may direct a verdict when a plaintiff fails to present evidence

raising a fact issue essential to its right of recovery or when the evidence

conclusively proves a fact that establishes the movant’s right to judgment as a

matter of law. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d

74, 77 (Tex. 2000). A directed verdict is appropriate when reasonable minds can

draw only one conclusion from the evidence. Vance v. My Apt. Steak House of

San Antonio, Inc., 677 S.W.2d 480, 483 (Tex. 1984). In reviewing the granting of

a directed verdict, we follow the standard of review for assessing the legal

sufficiency of the evidence. Cox v. S. Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex.


      7
        Margaret claimed that Section 25-6 of the ordinance of Denton, Denton
County, Texas, prohibited the sale of wares, goods, or merchandise from a public
street or sidewalk without a permit. Appellees claim this ordinance applies only
to “sidewalk vendors.” Margaret also claimed that Texas Accessibility Standards
prohibited reducing an accessible route by furniture placement.

                                        14
App.––Houston [1st Dist.] 2007, no pet.). We consider the evidence in the light

most favorable to the party against whom the verdict is directed. Id.

                              B. Negligence Per Se

      While violations of ordinances and statutes may constitute negligence per

se, the plaintiff must still establish that those violations caused her injury. See

Marathon Corp., 106 S.W.3d at 728–29 (holding code violation, without more, did

not prove that premises defect caused plaintiff’s fall); Ham v. Equity Residential

Prop. Mgmt. Servs. Corp., 315 S.W.3d 627, 633 n.2 (Tex. App.––Dallas 2010,

pet. denied) (holding code violations were not evidence that condition of

premises caused plaintiff’s injury); McDaniel v. Cont’l Apts. Joint Venture, 887

S.W.2d 167, 172 (Tex. App.––Dallas 1994, writ denied) (explaining negligence

per se by code violation establishes owner’s duty, not proximate cause).

                                   C. Analysis

      Viewing all of the evidence in the light most favorable to Margaret, there is

no evidence that CRH’s lack of a permit (assuming one was required)

proximately caused Laddie’s death or Margaret’s injuries.         And there is no

evidence that the placement of the outdoor furniture (assuming such placement

was violative of the Texas Accessibility Standards) proximately caused Laddie’s

death or Margaret’s injuries because––as reflected in the security video footage

of Laddie’s and Margaret’s leaving CRH––Laddie and Margaret exited straight

out the front door and proceeded directly to their vehicle parked almost directly in

front of the front door where Laddie fell as he maneuvered his walker off the

                                        15
curb. Laddie and Margaret did not walk through the outdoor patio area to the

handicap ramp, nor did they touch or encounter any outdoor furniture during their

exit from CRH. Thus, viewing all of the evidence in the light most favorable to

Margaret individually and on behalf of Laddie, no evidence exists that any

negligence per se by Appellees in violating an ordinance or a statute (if they did),

was a proximate cause of Laddie’s death or Margaret’s injuries; accordingly, the

trial court properly granted a directed verdict on the negligence per se claim.

See, e.g., Turner v. NJN Cotton Co., 485 S.W.3d 513, 523 (Tex. App.—Eastland

2015, pet. denied) (holding trial court did not err by granting directed verdict on

tortious interference claim because record disclosed complete absence of a vital

fact); LG Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642 (Tex. App.––

Dallas 2012, pet. denied) (holding trial court did not err by granting directed

verdict on Leick’s breach of fiduciary duty counterclaim because no evidence

existed supporting it).

      We overrule Margaret’s second issue.




                                        16
                                  V. CONCLUSION

      Having overruled both of Margaret’s issues, we affirm the trial court’s

judgment on the jury’s verdict.

                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

SUDDERTH, J., concurs without opinion.

DELIVERED: April 6, 2017




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