Opinion issued July 26, 2018




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-17-00355-CV
                           ———————————
                          KEITH KYLES, Appellant
                                       V.
     SOUTH LOOP 2626, LLC AND SOUTH LOOP PARTNERS, LLC,
                           Appellees


                   On Appeal from the 133rd District Court
                            Harris County, Texas
                     Trial Court Case No. 2015-32304-A

                         MEMORANDUM OPINION

      This is an appeal from a summary judgment dismissing tort claims against the

owner of an office building, arising from an incident in which a visitor in the

building’s atrium was injured by a box that fell to the ground floor while being

delivered to a tenant four floors above. Appellant Keith Kyles contends that his
summary-judgment evidence was sufficient to support his claims against the

building owners.

      Because Kyles failed to produce evidence raising a genuine issue of material

fact that the premises owner failed to take reasonable care to reduce or eliminate the

risk of a condition that posed an unreasonable risk of harm, we affirm.

                                          I

      For purposes of our review of this summary judgment, we assume the truth of

the claimant’s factual allegations. Keith Kyles was on the first floor in the open

atrium area of an office building when he was injured by a box that fell from the

fifth floor. The box contained medical supplies that were being delivered by an

employee of Attentus Medical Sales, Inc. to a tenant in the building. Kyles sued

Attentus Medical Sales to recover for its employee’s negligence. He also sued two

entities identified as owners of the premises, appellees South Loop 2626, LLC and

South Loop Partners, LLC (collectively “South Loop”),1 alleging that his injury was

caused by a “condition on the premises” that “posed an unreasonable risk of harm.”




1
      Kyles alleged that South Loop 2626, LLC and South Loop Partners, LLC
      owned the office building. In a verified answer, South Loop Partners denied
      liability “in the capacity in which it has been sued.” The precise relationship
      between these two entities is unclear from the limited appellate record.
      Deposition testimony in the record taken in September 2016 suggested that
      South Loop 2626, LLC no longer existed, but it owned the office building at

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      South Loop filed a no-evidence motion for summary judgment. Among other

things, it alleged that there was no evidence that a dangerous condition existed or

that any warning to visitors was required. Kyles responded by producing the

deposition transcripts of two witnesses: the corporate representative of the building

owner, Blake Lugash; and the deliveryman employed by Attentus Medical Sales,

Julio Rios.

      Lugash testified that another company was engaged for day-to-day

management of the office building. He was unaware of any other incidents at the

building in which a person was struck by an object falling from an upper floor to the

ground level. In response to questions posed by Kyles’s counsel, Lugash

acknowledged it was possible that an object placed on a guardrail, such as a cup of

coffee, could fall into the atrium area if it were knocked over. He also agreed that in

an “atrium style building” such as the one where Kyles was injured, it was more

likely that an object could fall from an upper floor down to the ground floor, as

opposed to a building design in which “the hallways have two walls on each side.”

      Rios testified that on the day of the incident, he made a delivery to Omni Plus

Health Care, a tenant in the office building. He had six boxes to deliver. Three of the

boxes, described as “case packs,” were 21-inch cubes that weighed 13 pounds each.


      the time Kyles was injured, and it somehow had been succeeded by South
      Loop Partners, LLC.

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The other three boxes, described as “ice packs,” were smaller but heavier than the

case packs. They measured 14 x 12 x 11 inches and weighed 36 pounds each. Rios

stated that he “stacked the three case packs and then the three ice packs on top of it

to weigh it down.”

      Rios used a four-wheeled handcart to deliver the six boxes. He entered the

building and took the elevator to the fifth floor. He positioned the cart in a hallway

between the door to the Omni Plus office and a railing that separated the hallway

from the open atrium.2 Rios removed the top ice pack and handed it to an Omni Plus

employee. When he removed the second ice pack, the cart tipped to the side, toward

the atrium. The third ice pack slid off the stack of boxes and fell into the atrium.

      The trial court granted a take-nothing summary judgment on the claims

against South Loop. It severed the claims against South Loop, making the summary

judgment final, and Kyles appealed.

                                           II

      Kyles argues that the trial court erred by granting the no-evidence motion for

summary judgment because the evidence demonstrated genuine issues of material




2
      Photos of the building, including the rail separating the hallway from the open
      atrium, were exhibits to the deposition but they do not appear in the appellate
      record. Rios testified that he is 5' 6" tall, and the top rail was around the height
      of his chest.

                                           4
fact regarding South Loop’s knowledge of a dangerous condition on the property,

its failure to make the property reasonably safe, or to provide warnings, and its

negligence.

      A no-evidence motion for summary judgment is essentially a directed verdict

granted before trial. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex.

2006). A party may move for no-evidence summary judgment if, after adequate time

for discovery, there is no evidence of one or more essential elements of a claim or

defense on which the nonmovant would have the burden of proof at trial. TEX. R.

CIV. P. 166a(i). The motion must state the elements as to which there is no evidence.

Id. “The court must grant the motion unless the respondent produces summary

judgment evidence raising a genuine issue of material fact.” Id. “We review the

evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not.” Mack Trucks, 206 S.W.3d at 582.

      “Depending on the circumstances, a person injured on another’s property may

have either a negligence claim or a premises-liability claim against the property

owner.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016)

(citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). “When the injury

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


                                          5
negligence principles apply.” Id. “When the injury is the result of the property’s

condition rather than an activity, premises-liability principles apply.” Id. (citing H.E.

Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)).

      Negligence and premises-liability claims are separate and distinct theories of

recovery, requiring plaintiffs to prove different, though similar, elements to secure

judgment in their favor. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471

(Tex. 2017). “In a negligent-activity case, a property owner or occupier must ‘do

what a person of ordinary prudence in the same or similar circumstances would

have . . . done,’ whereas a property owner or occupier in a premises liability case

must ‘use ordinary care to reduce or eliminate an unreasonable risk of harm created

by a premises condition which the owner or occupier [of land] knows about or in the

exercise of ordinary care should know about.’” Id. (quoting Timberwalk Apartments,

Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)).

      Kyles only pleaded a premises-liability claim against South Loop.3 When an

invitee brings such a claim against a premises owner, he must prove: (1) the property




3
      Kyles specifically alleged that he was an invitee on South Loop’s premises,
      that a condition on the premises “posed an unreasonable risk of harm,” that it
      had the “ability and authority to ensure its premises was not unreasonably
      dangerous for invitees,” that it “knew, or reasonably should have known, of
      the danger posed by its premises to the general public,” that it breached a duty
      of ordinary care by failing to adequately warn of the dangerous condition or

                                           6
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 his injuries. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014).

      In response to the summary-judgment motion filed in this case, Kyles

presented no evidence that raised a genuine issue of material fact about whether

South Loop failed to use reasonable care to reduce or eliminate the risks associated

with an open-atrium building. The evidence he presented showed that South Loop

entirely outsourced the day-to-day management of the office building to a property-

management company. Kyles presented no evidence that this was an unreasonable

thing for South Loop to have done. Kyles also presented no evidence that reasonable

care required South Loop or its property-management company to do something to

reduce or eliminate the open and obvious risks associated with standing in an open

atrium. See, e.g., Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015).

      We therefore conclude that the court properly granted summary judgment on

the premises claim. See TEX. R. CIV. P. 166a(i). South Loop argues that Kyles did



      make it reasonably safe, and that such breach was a proximate cause of his
      injuries and damages.



                                          7
not plead a distinct negligent-activity claim against it, and we agree. Accordingly,

we overrule Kyles’s sole issue, and we affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.




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