                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   §
 EDMUND FORESTER,                                                  No. 08-09-00057-CV
                                                   §
                         Appellant,                                     Appeal from
                                                   §
 v.                                                                  171st District Court
                                                   §
 EL PASO ELECTRIC COMPANY,                                       of El Paso County, Texas
                                                   §
                         Appellee.                                    (TC # 2009-388)
                                                   §

                                            OPINION

        Edmund Forester appeals from a summary judgment granted in favor of El Paso Electric

Company on a premises liability claim. For the reasons that follow, we affirm.

                                      FACTUAL SUMMARY

        On February 5, 2007, Edmund Forester ate dinner at Applebee’s Neighborhood Bar and Grill.

Afterward, he began to walk back to the La Quinta Inn where he was staying overnight. La Quinta

is located adjacent to, and across the parking lot, from Applebee’s. A median separates the two

business. An EPEC utility platform cover is located in the median and two yellow posts are located

it is bordered by two yellow posts is located in the median. While walking through the parking lot,

Forester decided to cut across the median to reach his hotel because he believed it to be a direct path.

With one foot in the Applebee’s parking lot, Forester stepped over the curb and onto the platform

cover. The cover gave way and Forester fell back into the Applebee’s parking lot. Forester

dislocated his shoulder while attempting to grab one of the yellow posts. He also suffered a fractured

vertebrae and a few abrasions on his stomach and legs.
         Forester sued EPEC1 claiming that it owed him a duty as an invitee to inspect the premises,

maintain them in a reasonably safe manner, and warn him of any hazardous conditions. EPEC filed

a combined traditional and no evidence motion for summary judgment alleging it conclusively

proved that Forester was a trespasser, or at best a licensee, and that Forester had no evidence that

EPEC was grossly negligent or that it had actual knowledge of the dangerous condition. The trial

court granted summary judgment for EPEC and entered a take nothing judgment. Forester raises

three issues on appeal.

                                            SUMMARY JUDGMENT

         Forester’s first two issues address the traditional summary judgment grounds. In Issue One,

he contends that as an easement holder, EPEC owed him the duty of ordinary care regardless of his

status at the time of injury. In Issue Two, Forester argues that should the court determine that his

status at the time of his injury is determinative of the duty owed, then the evidence shows he was an

invitee. In Issue Three, which addresses the no evidence summary judgment ground, Forester asserts

that should it be determined that he was a licensee, then a material fact question exists with regard

to EPEC’s gross negligence, or its failure to warn of the condition or make the condition reasonably

safe.

                                                 Standards of Review

         The standard of review for traditional summary judgment under TEX .R.CIV .P. 166a(c) is well

established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex. 1985).

The moving party carries the burden of showing there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d



         1
          Forester also sued several Applebee’s entities but those defendants are not part of this appeal as the trial court
severed Forester’s claims against EPEC.
842, 846 (Tex. 2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). Evidence favorable

to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact.

Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). All reasonable

inferences, including any doubts, must be resolved in favor of the non-movant. Id. A defendant is

entitled to summary judgment if the evidence disproves as a matter of law at least one element of

each of the plaintiff’s causes of action or if it conclusively establishes all elements of an affirmative

defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); Randall’s Food Markets, Inc.

v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the defendant establishes a right to summary

judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine

issue of material fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79

(Tex. 1979); Scown v. Neie, 225 S.W.3d 303, 307 (Tex.App.--El Paso 2006, pet. denied).

        A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the

same legal sufficiency standard of review. Viasana v. Ward County, 296 S.W.3d 652 (Tex.App.--El

Paso 2009, no pet.); Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.--El Paso 2007, no pet.). The

party moving for no-evidence summary judgment must assert that there is no evidence of one or

more essential elements of a claim or defense on which the non-movant would have the burden of

proof at trial. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848; see TEX .R.CIV .P. 166a(i).

The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged

elements. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848. To raise a genuine issue of

material fact, the non-movant must set forth more than a scintilla of probative evidence as to an

essential element of his claim or defense. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at

848.

                                           Easement Holder
         In his first issue, Forester contends that as an easement holder, EPEC owed him a duty of

ordinary care regardless of his status at the time of the injury. EPEC counters that this regular

negligence theory has been waived because Forester pled a premises liability case and responded to

EPEC’s summary judgment motion by utilizing premises liability principles.2

         In his live pleadings, Forester stated a negligence cause of action based on premises liability.

Asserting that he was an invitee at the time of his injury, Forester alleged that EPEC “had the duty

to inspect the premises and maintain them in a reasonably safe manner, and to warn of any hazardous

conditions.” Forester referred to the defendants as the “owner, occupier, and/or possessor” of the

premises. He did not assert that EPEC was an easement holder. We construe pleadings liberally in

favor of the pleader when special exceptions have not been filed. Horizon/CMS Healthcare

Corporation v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Liberal construction does not mean that we

imply claims that are not alleged. Toles v. Toles, 113 S.W.3d 899, 911 (Tex.App.--Dallas 2003, no

pet.). In determining whether a cause of action has been pled, the court must be able from an

examination of the plaintiff’s pleadings alone to ascertain with reasonable certainty the elements of

a cause of action and the relief sought with sufficient particularity upon which a judgment may be

based. Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex.App.--Eastland 2004, pet. denied), citing

Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979). After reviewing the record, we are unable

to determine with reasonable certainty that Forester’s pleadings include this claim. Further, Forester

did not raise the issue in his summary judgment response or present any summary judgment evidence

related to his claim on appeal that EPEC is an easement holder. See McConnell v. Southside


        2
           At oral argument, Forester argued for the first time that the trial court erred by granting summary judgment
with respect to this particular claim because EPEC’s summary judgment motion failed to address it. This issue is not
included in Forester’s brief on appeal. Therefore, it is waived. See Texas Medical Association v. Texas Workers
Compensation Commission, 137 S.W .3d 342, 351 (Tex.App.--Austin 2004, no pet.)(argument waived where asserted
during oral argument and in post-submission brief, but not in pre-submission briefs).
Independent School District, 858 S.W.2d 337, 343 (Tex. 1993). Instead he utilized premises liability

elements and principles and never asserted that EPEC, as an easement holder, owed him a different

duty of care. As the non-movant, Forester must have expressly presented to the trial court, by written

answer or response, any issues defeating EPEC’s entitlement to judgment as a matter of law.

McConnell, 858 S.W.2d at 343; TEX .R.CIV .P. 166a(c). Accordingly, we overrule Forester’s first

issue.

                                           Forester’s Status

         In Issue Two, Forester contends the trial court erred by concluding as a matter of law that he

was a licensee rather than an invitee. EPEC responds that the summary judgment evidence

conclusively negated the mutual benefit aspect necessary to establish invitee status. In a premises

liability action, the duty owed by a premises owner is determined by the status of the complaining

party at the time and place of injury. Greater Houston Transportation Company v. Phillips, 801

S.W.2d 523, 525 (Tex. 1990). An invitee is a person who enters the premises of another at the

express or implied invitation of the owner or occupier for their mutual benefit. Wong v. Tenet

Hospitals, Ltd., 181 S.W.3d 532, 537 (Tex.App.--El Paso 2005, no pet.); Braudrick v. Wal-Mart

Stores, Inc., 250 S.W.3d 471, 476 (Tex.App.--El Paso 2008, no pet.). The owner or occupier owes

an invitee the duty to keep the property safe and must use reasonable care to protect the invitee from

reasonably foreseeable injuries. Wong, 181 S.W.3d at 537. In the absence of a relationship that

inures to the mutual benefit of the entrant and the owner, an entrant is considered a licensee. Montes

v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.--El Paso 1997, pet. denied).

         Taking as true the summary judgment evidence favorable to Forester and resolving all

reasonable inferences and any doubts in his favor, the evidence conclusively established that Forester

cut across the parking lot and stepped on the utility platform cover for his own convenience and
benefit. He had not been a customer of EPEC, he was not given permission by EPEC to use the path,

and he did not use the path as a result of any direction or coercion by EPEC. Because Forester did

not present summary judgment evidence that EPEC derived any benefit from Forester cutting across

the median, he failed to create an issue of fact which would preclude the granting of summary

judgment. And because EPEC conclusively negated the mutual benefit element necessary to

establish Forester’s status as an invitee, the trial court did not err by concluding that Forester held

the status of a licensee at the time and place of his injury. See Wong, 181 S.W.3d at 537. We

overrule Issue Two.

                                          Gross Negligence

       In his final issue, Forester maintains that the trial court erred by granting a no evidence

summary judgment with respect to his gross negligence claim. The test for gross negligence contains

both an objective and a subjective component. Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d

778, 785 (Tex. 2001); Universal Services Company v. Ung, 904 S.W.2d 638, 641 (Tex. 1995).

Gross negligence means an act or omission: (1) which when viewed objectively from the actor’s

standpoint at the time of its occurrence involves an extreme degree of risk, considering the

probability and magnitude of the potential harm to others, and (2) of which the actor has actual,

subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to

the rights, safety, or welfare of others. TEX .CIV .PRAC.&REM .CODE ANN . § 41.001(11)(Vernon

2008); see Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999); Transportation

Insurance Company v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Evidence of simple negligence is

not enough to prove either the objective or subjective elements of gross negligence. Universal

Services, 904 S.W.2d at 641. The first element, “extreme risk,” means not a remote possibility of

injury or even a high probability of minor harm, but rather the likelihood of serious injury to the
plaintiff. Mobil Oil Corporation v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); Universal Services,

904 S.W.2d at 641. The second element, “actual awareness,” means that the defendant knew about

the peril, but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921.

Circumstantial evidence is sufficient to prove either element. Id.

       Regarding the extreme risk element, Forester does not point to any evidence showing that

the condition of the platform cover posed the likelihood of serious injury to him as opposed to a

remote possibility or even a high probability of minor harm. Instead, Forester relies on the testimony

of an expert witness that the platform was unstable due to improper design and installation and

EPEC failed to inspect or maintain it. The witness did not testify that there was a likelihood of

serious injury to Forester nor did he testify to facts from which it could be inferred that such a

likelihood existed. Consequently, Forester failed to carry his burden under Rule 166a(i).

       Turning to the second element of gross negligence, we must determine whether Forester

produced more then a scintilla of evidence establishing that EPEC knew about the peril, but its acts

or omissions demonstrated it did not care. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326

(Tex. 1993). Forester presented evidence to show that EPEC installed the platform in 1995 and that

it was responsible for its maintenance and inspection. After the installation of the platform, there

were no inspections, repairs, or modifications of the box or lid until EPEC was notified that the

cover was loose. None of this evidence establishes that EPEC knew of the danger. Forester also

relied on evidence that another individual, Arturo Almanzar, was injured on the same platform two

days earlier. But Almanzar filed an accident report at Applebee’s, not with EPEC. EPEC did not

receive notification about the condition of the platform until after Forester’s injury. We conclude

that Forester failed to present more than a scintilla of probative evidence to raise a genuine issue of

material fact as to whether EPEC was actually aware of the risk caused by the condition of the utility
platform cover. Issue Three is overruled. We affirm the summary judgment granted.


October 13, 2010
                                                 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
