AFFIRMED and Opinion Filed April 22, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01610-CV

                   SHENITRA WILLIAMS, INDIVIDUALLY,
             AND AS NEXT FRIEND OF R.W., III, A MINOR, Appellant
                                   V.
         ADVENTURE HOLDINGS, L.L.C., D/B/A AMAZING JAKES, Appellee

                      On Appeal from the 219th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 219-03596-2011

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Lang, and Fillmore
                                    Opinion by Justice Lang
       Shenitra Williams, individually, and as next friend of R.W., III, a minor, appeals the trial

court’s order granting Adventure Holdings, L.L.C., d/b/a Amazing Jakes’s motion for summary

judgment on Williams’s premises liability claim. Williams raises two issues arguing the trial

court erred when it granted Amazing Jakes’s motion for summary judgment because: (1)

Amazing Jakes used its motion for summary judgment to circumvent filing special exceptions as

it was based on a pleading deficiency that could have been cured by amendment; and (2) she

raised an issue of material fact as to each element of her claims, precluding both traditional and

no-evidence summary judgment.

       We conclude the trial court did not err when it granted Amazing Jakes’s motion for

summary judgment because the motion for summary judgment was not attempting to circumvent
the filing of special exceptions and Williams did not raise an issue of material fact precluding no-

evidence summary judgment. The trial court’s order granting summary judgment on Williams’s

claims is affirmed.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Amazing Jakes is an indoor amusement facility where the public may purchase food,

beverages, and play various amusements on its premises. The facility consists of two levels and

has two escalators, permitting access between those levels.

       To celebrate R.W.’s third birthday, Williams took her son and other family members to

Amazing Jakes. Williams allowed her son to play upstairs under the supervision of Williams’s

nine-year-old sister, while Williams remained downstairs in the dining area. R.W. was riding the

descending escalator, without adult supervision, when he tripped, seriously and permanently

injuring his hand and fingers.

       Williams filed a lawsuit against Amazing Jakes alleging a claim for premises liability and

seeking damages for the injuries to R.W.’s hand and fingers. Amazing Jakes filed an answer,

generally denying the allegations and asserting the affirmative defense of proportionate

responsibility. Williams filed her first amended petition alleging additional negligent conduct by

Amazing Jakes and its employees.

       Amazing Jakes filed a motion for traditional and no-evidence summary judgment on

Williams’s premises liability claim. Williams responded arguing discovery was not complete,

and the deposition testimony of three Amazing Jakes employees and her expert raised issues of

material fact. In her response to the motion for summary judgment, Williams argued she raised

issues of material fact as to the elements of both negligent activity and premises liability claims.

In its reply, Amazing Jakes argued that Williams was limited to a premises liability claim and

her allegations did not support a negligent activity claim. Williams filed her second amended


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petition adding an alternative claim for negligent activity and an additional response to the

motion for summary judgment. The trial court granted Amazing Jakes’s motion for summary

judgment, dismissing Williams’s claims. Williams filed a motion for new trial which was

overruled by operation of law. TEX. R. APP. P. 21.8(c).

                                  II. MOTION TO DISMISS

       In its brief responding to this appeal, Amazing Jakes includes a motion to dismiss the

appeal because Williams failed to properly cite to authority and the clerk’s record as required by

Texas Rule of Appellate Procedure 38.1(i). Afterward, Williams filed a motion for leave to

amend her brief, which this Court granted. Then, she filed her amended brief, which contains

citations to authorities and the record on appeal. This Court denies Amazing Jakes’s motion to

dismiss the appeal.

                 III. MOTION FOR SUMMARY JUDGMENT AS MEANS
                     OF CIRCUMVENTING SPECIAL EXCEPTIONS?

       In issue one, Williams argues the trial court erred when it granted Amazing Jakes’s

motion for summary judgment because Amazing Jakes used its motion to circumvent filing

special exceptions. She claims a motion for summary judgment should not be based on a

pleading deficiency that can be cured by an amendment. Amazing Jakes responds that at the

time the motion for summary judgment was filed, Williams’s first amended petition alleged only

a premises liability claim.

                                       A. Applicable Law

       Special exceptions may be used to challenge the sufficiency of a pleading. Friesenhahn

v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); TEX. R. CIV. P. 91. When the trial court sustains

special exceptions, it must give the pleader an opportunity to amend the pleading. Friesenhahn,

960 S.W.2d at 658. If a party refuses to amend or the amended pleading fails to state a cause of

action, then summary judgment may be granted. Friesenhahn, 960 S.W.2d at 658. However, a

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trial court may not grant summary judgment for failure to state a cause of action without first

giving the plaintiff an opportunity to amend the pleadings. Perry v. S.N., 973 S.W.2d 301, 303

(Tex. 1998); Pietila v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex. 1993). Nevertheless, summary

judgment may be proper if a pleading deficiency is of the type that could not be cured by an

amendment. Friesenhahn, 960 S.W.2d at 658.

                             B. Application of the Law to the Facts

       Amazing Jakes moved for traditional and no evidence summary judgment on Williams’s

premises liability claim. Amazing Jakes argued that it was entitled to traditional summary

judgment, as a matter of law, because the evidence demonstrated the escalator was working

properly on the day of the incident, disproving the essential element that the condition on the

premises posed an unreasonable risk of harm. See TEX. R. CIV. P. 166(c). Also, Amazing Jakes

argued it was entitled to no evidence summary judgment because Williams had no evidence that

the escalator posed an unreasonable risk of harm and that Amazing Jakes had actual or

constructive knowledge that the escalator was a dangerous condition. See TEX. R. CIV. P. 166(i).

Amazing Jakes did not seek summary judgment on the basis that Williams failed to state a cause

of action or any other pleading deficiency. Accordingly, we conclude the trial court did not err

when it granted Amazing Jakes’s motion for summary judgment because that motion was not

attempting to circumvent the filing of special exceptions.

       Issue one is decided against Williams.

        IV. MATERIAL FACT ISSUE PRECLUDING SUMMARY JUDGMENT?

       In issue two, Williams argues the trial court erred when it granted Amazing Jakes’s

motion for summary judgment because she raised an issue of material fact as to each element of

her claims for premises liability and negligent activity. She contends that her summary judgment

evidence raised issues of material fact as to Amazing Jakes’s prior knowledge that its escalators


                                                –4–
were a danger to small children riding alone and failure to warn its customers of the danger or

take measures to eliminate the danger. Amazing Jakes responds that with regard to Williams’s

claim for premises liability, she failed to raise an issue of material fact because she does not

identify a condition of the premises that posed an unreasonable risk of harm or show that

Amazing Jakes knew or should have known of the alleged dangerous condition on the premises.

Instead, Amazing Jakes contends that Williams is taking the position that all escalators are a

dangerous condition. Further, Amazing Jakes argues its summary judgment evidence shows that

the escalator was functioning properly and equipped with a cutoff switch that “shut down the

system if any object became caught in the escalator.” Also, Amazing Jakes claims that its

summary judgment evidence established there were no prior injuries on the escalator. With

regard to Williams’s claim for negligent activity, Amazing Jakes responds that her attempt to

phrase pleadings to allege another theory of negligence does not affect the application of

premises liability law and R.W.’s injury was not caused by any ongoing activity.

                                    A. Standard of Review

       When the trial court’s order granting summary judgment does not specify the grounds

relied on, an appellate court must affirm the summary judgment if any of the summary judgment

grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872B73

(Tex. 2000); Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas             2012, pet.

denied). Generally, when a party moves for both traditional and no-evidence summary judgment

on a claim, an appellate court will first review the trial court=s judgment under a no-evidence

standard of review.   See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);

Cunningham, 365 S.W.3d at 190.

       The same legal sufficiency standard of review that is applied when reviewing a directed

verdict is also applied when reviewing a no-evidence summary judgment. See Tex. Integrated


                                              –5–
Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—

Dallas 2009, pet. denied) (op. on motion for reh=g); RTLC AG Prods., Inc. v. Treatment Equip.

Co., 195 S.W.3d 824, 829 (Tex. App.—Dallas 2006, no pet.). When reviewing a no-evidence

summary judgment, an appellate court must determine whether the nonmovant produced any

evidence of probative force to raise a fact issue on the material questions presented. Tex.

Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d at 833. An appellate court reviews a no-

evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to

differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per

curiam); Wal-Mart, Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). An appellate court views all of the evidence

in the light most favorable to the party against whom the no-evidence summary judgment was

rendered and disregards all contrary evidence and inferences. See Smith v. O=Donnell, 288

S.W.3d 417, 424 (Tex. 2009); Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more

than a scintilla of probative evidence to raise a genuine issue of material fact. See Smith, 288

S.W.3d at 424. More than a scintilla of evidence exists when the evidence Arises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.@ See Merrell

Dow, 953 S.W.2d at 711.

                                      B. Applicable Law

       Premises liability is a special form of negligence. W. Invs., Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005). A premises defect cause of action exists if a person is injured as a result

of a condition of the premises. The elements of a premises liability case are: (1) actual or

constructive knowledge of some condition on the premises by the owner or operator; (2) the

condition posed an unreasonable risk of harm; (3) the owner or operator did not exercise


                                              –6–
reasonable care to eliminate or reduce the risk; and (4) the owner or operator’s failure to use such

care proximately caused the plaintiff’s injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264

(Tex. 1992).

            A condition presents an unreasonable risk of harm for premises-defect purposes 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). There is no definitive test for determining whether a specific

condition presents an unreasonable risk of harm. Pitts v. Winkler County, 351 S.W.3d 564, 573

(Tex. App.—El Paso 2011, no pet); Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694, 701 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). However, when determining whether an escalator was

a condition of the premises that posed an unreasonable risk of harm, courts have looked for

evidence of the following: (1) that someone was previously injured by the escalator; (2) whether

the construction of the escalator was somehow defective or unusual; (3) the escalator was

somehow inherently dangerous or hazardously situated; and (4) whether the escalator was in

compliance with applicable standards or that the particular construction or placement of the

escalator would have suggested to the premises owner that the escalator presented the prohibited

degree of danger, even if it had attempted an inspection for dangerous conditions.                                                         See

Dominguez v. Walgreen Co., No. 11-08-00045-CV, 2009 WL 3155041 (Tex. App.—Eastland

Oct. 1, 2009, no pet.) (mem. op.) 1 (summary judgment on premises liability claim appropriate

where child wandered away from mother, fell down and injured hand on escalator, but evidence

showed escalator working properly on day of accident and no evidence of escalator

malfunction); Schreiner v. Lakeline Developers, No. 03-02-00318-CV, 2003 WL 365967, *2


1
    “All opinions and memorandum opinions in civil cases issued after [January 1, 2003] have precedential value.” Tex. R. App. P. 47.2 cmt., 47.7
    cmt.; see also R.J. Suarez Enters., Inc. v. PNYX, L.P., 380 S.W.3d 238, 243 n.2 (Tex. App.—Dallas 2012, no pet.).



                                                                      –7–
(Tex. App.—Austin Feb. 21, 2003, no pet.) (mem. op.) (concluding summary judgment on

premises liability claim appropriate where child’s head, which was resting on moving escalator

handrail, was caught between handrail and stationary metal guardrail because no evidence of the

listed criteria); see also Pitts, 351 S.W.3d at 573 (courts consider whether premises owner has

received complaint of prior injuries or reports of potential danger); Farrar, 362 S.W.3d at 701

(evidence of similar injury or complaint caused by condition is probative on question of whether

condition posed unreasonable risk of harm). Whether a condition is unreasonably dangerous is

ordinarily a fact question. Pitts, 351 S.W.3d at 573; Farrar, 362 S.W.3d at 701. Nevertheless,

the mere fact that an accident occurred is no evidence that there was an unreasonable risk of such

an occurrence. Schreiner, 2003 WL 365967, at *2; Dabney v. Wexler-McCoy, Inc., 953 S.W.2d

533, 537 (Tex. App.—Texarkana 1997, pet. denied).

       When the injury is the result of the premises condition, the injured party can only recover

under a premises defect theory. McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167,

171 (Tex. App.—Dallas 1994, writ denied) (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d

258, 259 (Tex. 1992)). Adroit phrasing of the pleadings to encompass design defects, per se

negligence, or any other theory of negligence does not affect the application of premises liability

law. McDaniel, 887 S.W.2d at 171.

                             C. Application of the Law to the Facts

       Amazing Jakes argued it was entitled to no-evidence summary judgment because

Williams had no evidence that the escalator posed an unreasonable risk of harm and that

Amazing Jakes had actual or constructive knowledge that the escalator was a dangerous

condition. See TEX. R. CIV. P. 166(i). On appeal, Williams points to the following summary

judgment evidence, which she contends raised an issue of material fact, precluding summary

judgment on her premises liability claim: (1) the depositions of three employees of Amazing


                                               –8–
Jakes, stating they knew it was dangerous for small children to ride an escalator unescorted by an

adult; and (2) an expert report stating, “it was unsafe to allow small children to freely roam and

access both floors of the amusement facility” and “[Amazing Jakes] knew, or should have

known, the dangers associated with operating an escalator, in a children’s play environment, and

taken proactive safety measures to provide a safe experience for its guests.”

            Williams does not direct us to any evidence that shows anyone was previously injured by

the escalator. There was no evidence that the construction of the escalator was somehow

defective or unusual.                 Williams did not present evidence that the escalator was somehow

inherently dangerous or hazardously situated. There is no evidence that the construction of the

escalator was not in compliance with applicable standards, or that the particular construction and

placement of the escalator served as a suggestion or warning to Amazing Jakes that it presented

the prohibited degree of danger, even if Amazing Jakes attempted inspections for dangerous

conditions. See Schreiner, 2003 WL 365967, at *2.

            The evidence that Williams was not supervising R.W. and he was injured while riding an

escalator is evidence only that he was injured while riding the escalator. See Schreiner, 2003

WL 365967, at *3. Further, the evidence that children should not be permitted to ride an

escalator while unsupervised by an adult is just that. Accordingly, we conclude the trial court

did not err when it granted Amazing Jakes’s motion for no-evidence summary judgment because

Williams failed to raise an issue of material fact demonstrating the escalator was a condition of

the premises that posed an unreasonable risk of harm.

            Also, Williams argues she raised an issue of material fact precluding summary judgment

on her negligent activity claim. 2 After Amazing Jakes filed its motion for summary judgment,


2
    Williams does not raise an issue or otherwise argue that the trial court erred when it granted summary judgment, dismissing all of her claims,
    because Amazing Jakes did not move for summary judgment on her negligent activity claim.



                                                                      –9–
Williams amended her petition to include a claim for negligent activity. Her negligent activity

claim alleged, in part, “The layout and design of [Amazing Jakes’s] amusement facility

presented a continuing and ongoing danger/hazard to small children because of the activity of

allowing small children to ride the escalators in question alone and unsupervised.” Williams’s

adroit phrasing of her second amended petition to encompass a negligent activity theory does not

affect the application of premises liability law. See McDaniel, 887 S.W.2d at 171.

       Issue two is decided against Williams.

                                      V. CONCLUSION

       Amazing Jakes’s motion to dismiss the appeal is denied.

       The trial court did not err when it granted Amazing Jakes’s motion for summary

judgment because the motion for summary judgment was not attempting to circumvent the filing

of special exceptions and Williams did not raise an issue of material fact precluding no-evidence

summary judgment.

       The trial court’s order granting Amazing Jakes’s motion for summary judgment is

affirmed.




                                                   /Douglas S. Lang
                                                   DOUGLAS S. LANG
121610F.P05                                        JUSTICE




                                                –10–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SHENITRA WILLIAMS,                                  On Appeal from the 219th Judicial District
INDIVIDUALLY, AND AS NEXT                           Court, Collin County, Texas
FRIEND OF R.W., III, A MINOR,                       Trial Court Cause No. 219-03596-2011.
Appellant                                           Opinion delivered by Justice Lang. Justices
                                                    FitzGerald and Fillmore participating.
No. 05-12-01610-CV         V.

ADVENTURE HOLDINGS, L.L.C., D/B/A
AMAZING JAKES, Appellee

      In accordance with this Court’s opinion of this date, the trial court’s order granting
summary judgment is AFFIRMED.
      It is ORDERED that appellee ADVENTURE HOLDINGS, L.L.C. D/B/A AMAZING
JAKES recover its costs of this appeal from appellant SHENITRA WILLIAMS,
INDIVIDUALLY, AND AS NEXT FRIEND OF R.W., III, A MINOR.


Judgment entered this 22nd day of April, 2014.




                                                 /Douglas S. Lang/
                                                 DOUGLAS S. LANG
                                                 JUSTICE




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