      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-15-00243-CV



                                       Kristin Lee, Appellant

                                                   v.

        K & N Management, Inc. d/b/a Rudy’s Country Store and Bar-B-Q, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
    NO. D-1-GN-11-001839, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Kristin Lee sued appellee K & N Management, Inc. d/b/a Rudy’s Country

Store and Bar-B-Q for personal-injury damages after she allegedly tripped on a groundcover plant

near the entrance of a Rudy’s store. The trial court granted Rudy’s motion for summary judgment.

Two elements of Lee’s premises-liability claim are at issue on appeal: (1) whether there was a

dangerous condition on the premises and (2) whether Rudy’s had constructive knowledge of a

dangerous condition on the premises. Because Lee presented no evidence supporting her claim that

the plant constituted a dangerous condition, she failed to raise a genuine issue of material fact on that

element of her claim. Accordingly, we affirm the trial court’s grant of summary judgment.


                                          BACKGROUND

                On the evening of August 21, 2009, Kristin Lee had dinner with her mother and

brother at Chuy’s. Lee drank one margarita with her dinner. After their meal, the group went to
Rudy’s to pick up dessert to take home. Instead of parking in a designated parking spot, Lee’s

mother pulled her car up next to the sidewalk and let Lee out. Lee’s mother was on the opposite side

of the car from the sidewalk. Lee was wearing rubber flip-flops. After exiting the car and taking a

couple of steps, she allegedly slipped on groundcover which she asserts had grown over the edge of

the flowerbed onto the sidewalk leading up to the restaurant. Justin House, a Rudy’s employee and

friend of the Lee family, saw the fall from 25 feet away. House testified that after Lee fell, he saw

plant overgrowth on the sidewalk that “was green and had some kind of flowers on it.” He said it

was protruding about ten inches out onto the sidewalk in one spot. Lee’s fall resulted in a fractured

ankle that ultimately required two surgeries.

               Lee sued Rudy’s on premises-liability and negligent-activity theories of recovery.

Rudy’s moved for traditional and no-evidence summary judgment on all of Lee’s claims. With

regard to Lee’s premises-liability claim, Rudy’s asserted that (1) the plant overgrowth was not

dangerous as a matter of law, (2) Rudy’s did not and should not have known of the alleged defect,

and (3) there was no evidence of either of these two essential elements of Lee’s claim. In her

summary-judgment response, Lee only responded to the argument that Rudy’s should not have

known of the alleged defect. Lee asserted that the reasonable inference is that the plant grew slowly

over the walkway, raising a fact issue about whether Rudy’s had constructive knowledge of the

defect. Lee did not address Rudy’s contention that the plant overgrowth was not dangerous as a

matter of law. The trial court granted summary judgment for Rudy’s without stating the basis for

its ruling. This appeal followed.




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                                           ANALYSIS

               On appeal, Lee contends in a single issue that there is a fact issue about whether

Rudy’s had constructive knowledge of a dangerous condition on the premises. Also at issue on

appeal is whether Lee established that a dangerous condition existed on the premises.


Standard of review

               We review the trial court’s summary judgment de novo. Travelers Ins. Co.

v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When the trial court’s order does not specify the

grounds for its summary judgment, we must affirm the summary judgment 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). When a party files both traditional

and no-evidence motions, we first review the trial court’s decision under the no-evidence standard.

See Tex. R. Civ. P. 166a(i); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If

we determine that the no-evidence summary judgment was properly granted, we need not analyze

whether the movant satisfied its burden for traditional summary judgment. Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

               A movant seeking a no-evidence summary judgment must assert that there is no

evidence of one or more essential elements of a claim on which the nonmovant would have the

burden of proof at trial. Tex. R. Civ. P. 166a(i). Once the motion is filed, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each of the elements

challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When

reviewing a no-evidence summary judgment, we must consider the summary-judgment evidence “in

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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.” Id.

                A no-evidence motion should be granted when: “(a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by the 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.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of evidence

exists when the evidence ‘rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions.’” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997)). “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.” Id. (quoting Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983)).


Premises liability

                “Premises liability is a special form of negligence where the duty owed to the plaintiff

depends upon the status of the plaintiff at the time the incident occurred.” Western Invs., Inc.

v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In this case, it is undisputed that Lee was a business

invitee when she fell on Rudy’s premises. A premises owner owes invitees “a duty to use ordinary

care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which

the property owner knew or should have known.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,

767 (Tex. 2010). A premises owner’s duty toward its invitee does not, however, make the owner

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an insurer of the invitee’s safety. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.

1998). To recover damages in a premises-liability case, a plaintiff must prove: (1) actual or

constructive knowledge of some condition on the premises by the owner; (2) the condition posed an

unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate the

risk; and (4) the owner’s failure to use such care proximately caused the plaintiff’s injuries. Keetch

v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).


Dangerous condition

                In a premises-liability case, the plaintiff must establish that a dangerous condition on

the premises presented an unreasonable risk of harm. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161,

162 (Tex. 2007) (per curiam). A condition poses an unreasonable risk of harm “when there

is a ‘sufficient probability of a harmful event occurring that a reasonably prudent person

would have foreseen it or some similar event as likely to happen.’” County of Cameron v. Brown,

80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754

(Tex. 1970)).

                The Texas Supreme Court has held that certain naturally occurring substances

generally do not pose an unreasonable risk of harm. In particular, the supreme court has held that

ordinary mud or dirt in its natural state can, and often does, form a condition posing a risk of harm,

but not an unreasonable risk of harm. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex.

2004) (per curiam) (finding mud that accumulated on outdoor concrete slab without assistance or

involvement of unnatural contact was not dangerous condition); see also Johnson Cty. Sheriff’s

Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex. 1996) (holding that dirt and small rocks in

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rodeo arena did not constitute dangerous condition); Brownsville Navigation Dist. v. Izaguirre,

829 S.W.2d 159, 160 (Tex. 1992) (“Plain dirt which ordinarily becomes soft and muddy when wet

is not a dangerous condition of property for which a landlord may be liable.”). But cf. Wong v. Tenet

Hosps. Ltd., 181 S.W.3d 532, 538 (Tex. App.—El Paso 2005, no pet.) (stating that “distressed

shrub” was not in its natural state because it had been specifically planted as part of landscaping

scheme and there was no evidence of reason that shrub was in distressed state).

               Under the facts of this case, the plant, like mud and dirt, may have formed a condition

that posed a risk of harm, but on this record, we cannot conclude that it was an unreasonable risk

of harm. Even though the determination of whether a particular condition poses an unreasonable risk

of harm is generally fact-specific and there is no definitive, objective test that may be applied to

make that determination, see Seideneck, 451 S.W.2d at 754, Lee did not address Rudy’s no-evidence

challenge to this element of her claim and presented no evidence in her response that created a fact

issue. Reviewing all the evidence in the summary-judgment record in the light most favorable to

Lee, we conclude that the evidence regarding whether the plant was a dangerous condition does not

rise to the level of more than a scintilla of evidence.

               House—the only witness who actually saw the plant—testified that the plant

overgrowth protruded approximately ten inches over the edge of the flowerbed in one spot onto the

three-and-a-half-foot sidewalk. He was able to see it from the restaurant patio, an estimated 25 feet

away from where Lee fell. House and Lee both testified that the area was well lit. Lee testified that

when she got out of the car, she looked to see where she would be stepping and saw that the area

where she was about to step was clear. She remembered that she stepped in the middle of the



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sidewalk and “had the perfect amount on both sides when I got out on the sidewalk to get out on.”

Lee only took a couple of steps before she turned around and looked back at her mother so that she

could talk to her without yelling and then she fell. Lee testified that she has no memory of tripping

over a plant or any kind of landscaping and is not sure why she fell. Lee’s mother, who was in the

car when Lee fell, also testified that she never saw the plant. House, after somewhat equivocating

testimony in his deposition, stated that he observed Lee step on the plant, but further testified that he

did not feel that it was a dangerous condition or that he should report the incident to his supervisor.

                In addition, the summary-judgment evidence contains several photographs of the

outdoor area in question. The raised, curbed area contains a triangular-shaped flowerbed with a

white sidewalk. The sidewalk runs between a parking space and the flowerbed and appears to lead

to the restaurant. The flowerbed is filled with a low groundcover plant that appears dark-colored,

dense, and leafy. In the photographs, there is a car parked in the parking space on the other side of

the sidewalk from the flowerbed, and the height of the curbed area and the groundcover together is

approximately the middle of the car’s tire.

                Given the testimony that the area was well-lit, Lee’s testimony that she could see

where she was stepping and that the area was clear, House’s testimony that the plant overgrowth was

easily visible from 25 feet away and that he did not think it was dangerous, and the photographs, the

evidence—at best—“does nothing more than present a mere speculation and does not rise to the level

of more than a scintilla of evidence” of an unreasonable risk of harm. See Wong, 181 S.W.3d at

539. While a plant, whether landscaped or not, might present a hazard under the right conditions,

the evidence of any risk here does not rise to the level of more than a scintilla, and therefore, it does



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not create a fact issue on the question of whether the plant overgrowth was a dangerous condition

for which Rudy’s may be held liable. See id. (holding, based on summary-judgment record, as a

matter of law, distressed shrub was not unreasonably dangerous condition for which hospital could

be held liable). We conclude there is no basis for holding Rudy’s liable under the undisputed facts

of this case.1


                                         CONCLUSION

                 Having concluded that Lee did not create a fact issue on the dangerous-condition

element of her premises-liability claim, we affirm the trial court’s summary judgment.



                                              __________________________________________
                                              Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: December 11, 2015




        1
          Because we conclude that Lee failed to raise a fact issue on this element of her claim, we
do not reach her appellate issue asserting that there is a fact issue about whether Rudy’s had
constructive knowledge of a dangerous condition on the premises. See Tex. R. App. P. 47.1
(appellate court must hand down written opinion that is as brief as practicable but that addresses
every issue raised and necessary to final disposition of appeal).

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