                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00064-CV

                                           Richard ARCE,
                                              Appellant

                                                  v.

                     Ken MCGOUGH and Jan McGough d/b/a K&M Auto Sales,
                                        Appellee

                    From the 198th Judicial District Court, Bandera County, Texas
                                Trial Court No. CVDV-XX-XXXXXXX
                            Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: September 26, 2018

AFFIRMED

           Appellant Richard Arce (“Arce”) appeals from the trial court’s order granting traditional

and no-evidence summary judgment against him. We affirm the trial court’s judgment.

                                             Background

           Arce was working at the place of business of Appellees Ken McGough and Jan McGough

d/b/a K&M Auto Sales (“K&M”), when a tree branch fell on or near him. Arce sued K&M for

injuries he allegedly sustained as a result of the fallen tree branch.
                                                                                   04-18-00064-CV


       On appeal, Arce contends his Original Petition set forth two causes of action: “One was for

premises liability based on his presence at K&M’s place of business, as a contractor. Arce also

alleged in the alternative that he was an employee of K&M. . . . and K&M failed to provide a safe

place to work.”

       K&M filed traditional and no-evidence motions for summary judgment premised on the

argument that “[a]t all times [Arce] was an ‘invitee’ on the premises, as he was a contract worker

performing ‘detail’ work on [K&M’s] vehicles for sale.” K&M argued Arce had no evidence of

any of the elements necessary to establish premises liability, including no evidence that K&M

knew of any unreasonably dangerous condition on the premises and either failed to make the

premises safe or failed to warn Arce of the condition.

       Before the motions for summary judgment were heard, Arce timely filed a First Amended

Petition. According to Arce, he “amended his pleading to eliminate the cause of action upon which

K&M moved for summary judgment, premises liability,” and went forward solely on a claim for

employer’s negligence. After amending his petition, Arce filed a two-page response to K&M’s

motions for summary judgment, stating the First Amended Petition rendered the motions moot.

Arce did not file or identify any record evidence in support of his response.

       After a hearing at which all parties’ counsel appeared, the trial court granted K&M’s

summary judgment motions without specifying the grounds. Arce appeals.

                                            Discussion

       In two issues on appeal, Arce argues the trial court erred in granting K&M’s traditional

and no-evidence motions for summary judgment because the motions only addressed his

withdrawn claim for premises liability and not his claim for employer’s negligence.




                                                -2-
                                                                                      04-18-00064-CV


A.       Standard of review

         Where, as here, a defendant moves for both traditional and no-evidence summary judgment

and the trial court grants summary judgment without stating its grounds, we first review the trial

court’s decision as to the no-evidence motion for summary judgment. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004). We review the grant of summary judgment, both traditional and

no-evidence, de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003).

         A party moving for no-evidence summary judgment is entitled to judgment if, “[a]fter

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

or defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.

166a(i). The trial court “must” grant a no-evidence motion for summary judgment unless the non-

moving party produces evidence raising a genuine issue of material fact. Id. “A genuine issue of

material fact exists if more than a scintilla of evidence establishing the existence of the challenged

element is produced.” Ridgway, 135 S.W.3d at 600.

B.       Analysis

         Arce argues his First Amended Petition, which was the operative pleading at the time the

trial court granted summary judgment, alleged only one cause of action: employer’s negligence.

K&M does not appear to dispute that it moved for summary judgment on premises liability only.

Therefore, the first question for this court is whether Arce alleged a premises liability or a

negligence cause of action in the First Amended Petition. If Arce alleged premises liability, then

we turn to whether K&M and Arce met their respective summary judgment burdens. If Arce

alleged negligence, then we must conclude the summary judgment motions were rendered moot

by the First Amended Petition.



                                                 -3-
                                                                                      04-18-00064-CV


       1. Arce’s pleadings

       Arce’s First Amended Petition alleged, in relevant part:

               III. This is a workplace accident case . . .

               V. Plaintiff would show that the accident in question and his injuries and
       damages were proximately caused by Defendant’s negligence in failing to remove
       the dangerous condition which created a reasonably foreseeable risk of the kind of
       injury which was incurred. Defendant did not provide worker’s compensation for
       its employees. As a result, Plaintiff must only establish one percent negligence
       against Defendant for recovery.

               VI. Plaintiff would show each of the above acts and omissions, whether
       singularly or in combination with others, constituted negligence, and such
       negligence was a proximate cause of the occurrence in question and Plaintiff’s
       resulting injuries.

               VII. Upon trial of this case, it will be shown that Plaintiff[ ] was caused to
       sustain permanent injuries and damages as a proximate result of the Defendants’
       negligence. . . .

Although the First Amended Petition alleges K&M was “negligent,” Arce claims his injuries were

caused by K&M’s “fail[ure] to remove the dangerous condition.” For the reasons set forth below,

we conclude Arce alleges a premises liability claim rather than a negligence claim.

       A plaintiff who is injured on another person’s property may have either a negligence claim

or a premises liability claim against the property owner. United Scaffolding, Inc. v. Levine, 537

S.W.3d 463, 471 (Tex. 2017). “When the injury is the result of a contemporaneous, negligent

activity on the property, ordinary negligence principles apply. When the injury is the result of the

property’s condition rather than an activity, premises-liability principles apply.” Id. (citations

omitted).

       Even where a plaintiff expressly alleges “negligence,” courts have held the claim sounds

in premises liability if the plaintiff’s alleged injury arises from a condition of the premises. For

instance, in Levine, the plaintiff was working on scaffolding when he slipped on a piece of plywood

that had not been nailed down, causing him to fall and sustain a neck injury. Id. at 467. The

                                                 -4-
                                                                                      04-18-00064-CV


plaintiff’s petition asserted liability based on “negligence,” and the trial court submitted a general

negligence question to the jury. Id. at 468. Reversing an award in the plaintiff’s favor, the Supreme

Court held that because the plaintiff alleged an injury resulting from a physical condition left on

the property (“a hole in the scaffold platform, covered by an unsecured sheet of plywood”), rather

than some contemporaneous activity on the property, his injury arose from a premises defect, not

negligence. Id. at 473.

        Similarly, in Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex.

2004), the plaintiffs sued the parks department for negligence and gross negligence for injuries

one plaintiff sustained after a tree limb fell on her while she was visiting a public campsite. On

appeal from the denial of the parks department’s plea to the jurisdiction, the Supreme Court

concluded the plaintiffs’ “allegation of an injury caused by a tree limb falling on Maria Miranda

constitutes an allegation of a condition or use of real property and is an allegation of a premises

defect.” Id. at 230.

        As in Levine and Miranda, Arce’s alleged injury arose from a premises defect. Arce alleges

he was injured by a falling tree limb that he contends K&M knew of and did not remove or warn

against. Arce does not allege K&M engaged in any contemporaneous, negligent activity on the

property. Therefore, the sole claim asserted in Arce’s First Amended Petition is a claim for

premises liability.

        Since there is no dispute that K&M’s motions for summary judgment address Arce’s claim

as a premises liability claim, we turn to whether K&M was entitled to summary judgment on no-

evidence grounds.

        2. No evidence to support premises liability

        K&M’s summary judgment motions are based on K&M’s argument that “[a]t all times,

[Arce] was an ‘invitee’ on the premises, as he was a contract worker performing ‘detail’ work on

                                                 -5-
                                                                                      04-18-00064-CV


[K&M’s] vehicles for sale.” However, even if Arce was an employee of K&M, as he alleged in

the First Amended Petition, “employers owe employees the same premises-liability duty that other

landowners owe to their invitees[.]” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 201 (Tex. 2015).

An “invitee” is someone who enters an owner’s property with the owner’s knowledge and for the

mutual benefit of both the invitee and the owner. Id. at 202 (citing Motel 6 G.P., Inc. v. Lopez, 929

S.W.2d 1, 3 (Tex. 1996)). An employee working at his employer’s premises falls under this

definition of “invitee,” and an employer’s duty to make its premises reasonably safe for employees

is identical to a landowner’s duty to make its premises reasonably safe for invitees generally. Id.

(citations omitted). A plaintiff-invitee must prove the property owner failed to use ordinary care

to reduce or eliminate an unreasonable risk of harm created by a premises condition that the owner

knew about or should have known about in the exercise of ordinary care. Levine, 537 S.W.3d at

471.

       Here, K&M alleged there was no evidence K&M had actual or constructive knowledge of

any unreasonably dangerous condition on the premises and either failed to make the premises safe

or failed to warn Arce of the condition. Because K&M alleged there was no evidence of these

essential elements of a premises liability claim, the burden shifted to Arce to identify more than a

scintilla of evidence raising a genuine issue of material fact. See TEX. R. CIV. P. 166a(i). It is

undisputed that Arce did not identify any evidence in response to K&M’s no-evidence motion for

summary judgment. Therefore, Arce did not meet his summary judgment burden and the trial

court’s order granting summary judgment can be sustained on no-evidence grounds. Arce’s second

issue is overruled.




                                                -6-
                                                                                04-18-00064-CV


                                         Conclusion

       Because we conclude the trial court did not err in granting K&M’s no-evidence motion for

summary judgment, we need not reach Arce’s first issue regarding K&M’s traditional motion for

summary judgment. We affirm the trial court’s judgment.

                                               Sandee Bryan Marion, Chief Justice




                                             -7-
