                                                                                                                                               ACCEPTED
                                                                                                                                               03-15-00670
                                                                                                                                                   8261402
                                                                                                                                THIRD COURT OF APPEALS
                                                                                                                                           AUSTIN, TEXAS
                                                                                                                                    12/16/2015 11:36:02 AM
                                                                                                                                         JEFFREY D. KYLE
                                                                                                                                                    CLERK
                                     IN THE COURT OF APPEALS
                                  FOR THE THIRD JUDICIAL DISTRICT
                                     SITTING AT AUSTIN, TEXAS                                                        FILED IN
                                                                                                            3rd COURT OF APPEALS
                                                                                                                 AUSTIN, TEXAS
                                                       03-15-00670-CV                                     12/16/2015 11:36:02 AM
                                                                                                               JEFFREY D. KYLE
                                                                                                                       Clerk
-------------------------------------------------------------------------------------------------------------------------------------------

                                                         Susan Aranda

                                                                  Vs.

                                        Cindy Sue Willie Partnership Trust

-------------------------------------------------------------------------------------------------------------------------------------------
                                        Brief of Appellant Susan Aranda
-------------------------------------------------------------------------------------------------------------------------------------------

                              Appealed from Cause No. D-1-GN-13-000525
                                 District Court of Travis County, Texas
                                 Honorable Judge Meachum Presiding

                                            No Oral Argument Requested

Respectfully submitted,
THE CARLSON LAW FIRM, P.C.
11606 N. IH-35
Austin, Texas 78753
Telephone: (512) 346-5688
Fax: (512) 719-4362


Robert L. Ranco
SBN: 24029785
Rranco@carlsonattorneys.com
Roberto Flores
SBN: 24074211
Rflores@carlsonattorneys.com

Attorneys for Appellant
                                                       03-15-00670-CV


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                                                         Susan Aranda

                                                                  Vs.

                                        Cindy Sue Willie Partnership Trust

-------------------------------------------------------------------------------------------------------------------------------------------

                                     Certificate of Parties and Attorneys

      Pursuant to Rule 38.1 (a) of the Texas Rule of Appellate Procedure Susan
Aranda, Appellant, supplies the following list of parties to the order appealed from
and the names and addresses of counsel:

Parties

Susan Aranda

Cindy Sue Willie Partnership Trust

Attorneys

Robert L. Ranco
SBN: 24029785
Roberto Flores
SBN: 24074211
THE CARLSON LAW FIRM, P.C.
11606 N. IH-35
Austin, Texas 78753
Telephone: (512) 346-5688
Fax: (512) 719-4362
Attorney for Appellee
Sharon D. Hobbs
SBN:09739500
Allen Stein & Durbin, P.C.
6243 IH-10 West, 7th Flood
P.O. Box 101507
San Antonio, Texas 78201
Phone: (210) 734-7488
Fax: (210) 738-8036
Attorney for Appellant

Trial Court
Appealed from Cause No. D-1-GN-13-000525
District Court of Travis County, Texas
Honorable Judge Meachum Presiding
                                                                  Contents

Table of Authorities ...................................................................................................................... 5
Statement of the Case ................................................................................................................... 1
Statement of the Issues ................................................................................................................. 2
Statement of Facts ......................................................................................................................... 3
Summary of the Argument .......................................................................................................... 4
Standard of Review ....................................................................................................................... 5
Argument ....................................................................................................................................... 6
  A. The Trial Court Erred in Granting Antler’s No-Evidence Motion for Summary Judgment
  Because Aranda Presented Evidence of Each Element of Her Claim ........................................ 6
    1) The Ledge Posed an Unreasonable Risk of Harm .............................................................. 6
    2) Antler Knew or Reasonably Should Have Known of the Dangerous Ledge ..................... 8
    3) Antler Never Warned of the Dangerous Ledge .................................................................. 8
    4) Aranda Tripped on the Ledge ........................................................................................... 10
  B. The Trial Court Erred in Granting Antler’s Traditional Motion for Summary Judgment ... 16
    1) Antler Did not Present Evidence that Aranda’s Injuries were Not Caused by the Incident
    or that they Warned Her ........................................................................................................ 16
    2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous Condition Caused
    Aranda’s Injury as Well as Whether Antler Breached its Duty to Remedy The Condition. 17
Conclusion ................................................................................................................................... 18
Prayer ........................................................................................................................................... 19
Certificate of Service................................................................................................................... 21
Certificate of Compliance........................................................................................................... 21
Appendix ...................................................................................................................................... 22
                                              Table of Authorities


Statutes
TEX. R. CIV. P. 166a(i) ...............................................................................................6
Texas State Cases
Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) .................................................5

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..............................................5

Cohen v. Landry’s Inc., 442 S.W.3d 818 (Tex. App—Houston [14th Dist.] 2014,

   pet denied) ..............................................................................................................6

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) ...................................8

Dallas Cent. Appraisal Cen. V. Cunningham, 161 S.W.3d 293 (Tex. App.—Dallas

   2005, no pet.). .........................................................................................................5

Del Lago Partners v. Smith, 307 S.W.3d 762 (Tex. 2010)......................................10

Ford Motor Co v. Ridgeway, 135 S.W.3d 598 (Tex. 2000) ......................................5

G&H Towing Co v. Magee¸347 S.W.3d 293 (Tex. 2011) .......................................15

Hammerly Oaks, Inc v. Edwards¸ 958 S.W.2d 387 (Tex. 1997) .............................12

Henkel v. Norman, 441 S.W.3d 249 (Tex. 2014) ..................................................8, 9

Lear Siegler, Inc v. Perez, 819 S.W.2d 470 (Tex. 1991).........................................16

Marathon Corp v. Pitzner, 106 S.W.3d 724 (Tex. 2003) ........................................11

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654 (Tex. 1999) (plurality op.) ................10

Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) ................................17

Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .................17
Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336 (Tex. App.—Austin 2000, pet

  denied) ....................................................................................................................6

Seideneck v. Cay Bayreuther Assocs., 451 S.W.2d 751 (Tex. 1970) ........................6

Sweet v. Flow Force Plumbing, L.L.C. NO 05-12-01688-CV 2014, Tex. App.

  Lexis 5125 (Tex. App.—Dallas May 13, 2014, no pet.) ......................................12

TXI Operations, LP. v. Perry, 278 S.W.3d 763 (Tex. 2009) .................................8, 9

Wal-Mart Stores, Inc v. Gonzalez, 968 S.W.2d 924 (Tex. 1998). .............................5

Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005) .............................................10
                                                       03-15-00670-CV


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                                                         Susan Aranda

                                                                  Vs.

                                        Cindy Sue Willie Partnership Trust

-------------------------------------------------------------------------------------------------------------------------------------------


TO THE HONORABLE JUDGE OF SAID COURT:


                                                  Statement of the Case

          This is personal injury case based on premises liability. Susan Aranda

(hereinafter Aranda) was injured on the property of Appellee, The Willie Limited

Partnership d/b/a ANTLER MINI STORAGE (hereinafter “Antler”) on November

22, 2012. Aranda filed a lawsuit against Antler Mini Storage and The Cindy Sue

Willie Partnership Trust on February 11, 2013. C.R. 2.

          Antler filed a Traditional and No-evidence Motion for Summary Judgment

on April 28, 2015. C.R. 44. The motion was not joined by codefendant The Cindy

Sue Willie Partnership Trust. Aranda filed a response and objected to the

presentation of much of Antler’s evidence. C.R. 141. The Traditional and No-

Evidence Motions for Summary Judgment were both granted on July 23, 2015.


                                                                    1
C.R. 201. Aranda’s objection to the evidence regarding marijuana use was granted.

C.R. 200. Aranda filed a motion for reconsideration and motion for new trial on

August 11, 2015. C.R. 202. The Motion for New Trial was denied on October 5,

2015. C.R. 220. Aranda filed a Motion to Sever which was granted on October 19,

2015. C.R. 222. The order granting Defendant’s Motion for Summary Judgment

became full and final on October 19, 2015. C.R. 222. Aranda appeals the granting

of Antler Mini Storage’s Traditional and No-Evidence Motions for Summary

Judgment.

                             Statement of the Issues

A. The Trial Court Erred In Granting Antler’s No-Evidence Motion For Summary
Judgment Because Aranda Presented More Than A Scintilla Of Evidence Of Each
Element Of Her Claim.

      1) The Ledge Posed an Unreasonable Risk of Harm

      2) Antler Knew or Reasonably Should have Known of the Dangerous Ledge

      3) Antler Never Warned of the Dangerous Ledge

      4) Aranda Tripped on the Ledge

B. The trial court erred in granting Antler’s Traditional Motion for Summary
Judgment:

      1) Antler Did not Present Evidence that Aranda’s Injures Not Caused by the
      Ledge or that They Warned Her

      2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous
      Condition Caused Aranda’s Injury as Well as Whether Antler Breached Its
      Duty to Remedy the Condition


                                        2
                                     Statement of Facts

       Aranda and her friends arrived at Antler Mini Storage around 6 pm on

November 22, 2011. C.R. 72. Pg 32:19-22; Pg 33:2-4.1 They had a full truck of

things to pack into the newly rented ministorage unit. C.R. 122 Pg 39:20-21.

When they arrived Aranda got the key and locks from the manager. C.R. 75 Pg

44:20-23. As she did, the manager apologized to Aranda for the poor lighting. C.R.

76. Pg 48:24-49:4. Aranda and her friends then drove around to the unit to pack her

things into the storage unit. C.R. 77 Pg 51:23-52:1.

       Unbeknownst to her, the unit Aranda rented was unique. C.R. 97 Pg 10:22-

24. To enter the storage unit required a step up into the unit. C.R. 183. (photos of

the ledge). With large boxes in her arms Aranda packed things into the unit. Not

knowing there was a ledge in the unit, she tripped and fell sometime between 6:20

and 6:40 P.M. C.R. 70 Pg 16:10-12; C.R. 88 Photo 43; 49; C.R. 70 Pg 17:13-15.

As she fell she tried to protect herself, threw away the box she was holding and

landed on her shoulder. C.R. 70 Pg 16:22-17:4. Karen, Aranda’s friend, saw her on

the ground holding her shoulder. C.R. PG 45:9-13. Needing to continue packing

things into the unit, she got back up and continued to move boxes into the unit.

C.R. 127 Pg 45:9-13. She then drove back to Houston. C.R. 72 Pg 32:19-22.


1
 Citations to Clerk’s Record will be identified as C.R. Citations to depositions pages and lines
will be included when necessary. (C.R. XX Pg YY)
                                                3
      Aranda and her sister Patrica Birdwell returned to the storage unit later. C.R.

80 Pg 73:21-74:2; C.R. PG 97 10:21-25. Upon her investigation she realized that

she fell on a ledge at the entrance of the unit. C.R. 80 Pg 73:21-25. That ledge and

the entire unit were much higher than the other units in the area. C.R. 97 Pg 10:22-

24. The ledge was entirely unmarked. C.R. 88 Photo 43; 49. The ledge and lighting

violated numerous buildings codes regarding the height of risers and general

safety. C.R. 179-84.

                           Summary of the Argument

      In response to Antler’s No-Evidence Motion for Summary Judgment Aranda

presented evidence that a fact issue existed regarding all points of her claim.

Aranada presented evidence that the condition was unreasonably dangerous based

on the unusual nature of the ledge and the bad lighting. The ledge was higher than

all the other units, unmarked, and a violation of local ordinances. Aranda presented

evidence that Antler knew or should have known of the dangerous condition

because Antler warned her partially of the danger and the condition existed for

almost twenty years. Finally, Aranda presented evidence that she tripped on the

ledge. Because of the presented evidence, Antler’s Traditional and No-Evidence

Motion for Summary Judgment must be denied.

      Moreover, Antler presented no evidence to support its Traditional Motion

for Summary Judgment. Antler did not present evidence that Aranda’s injuries


                                         4
were not caused by the ledge. Antler also did not present evidence that they

adequately remedied the danger by either warning of the danger or removing the

condition. Antler presented inadmissible evidence that Aranda was at fault for her

own injuries due to suspicion of marijuana use. The trial court correctly sustained

Aranda’s objections to that evidence. Because Antler failed to meet its burden to

show that no fact issue existed, the trial court should have denied Antler’s

Traditional Motion for Summary Judgment.

                               Standard of Review

      The standard for review of a traditional summary judgment is de novo.

Dallas Cent. Appraisal Cen. V. Cunningham, 161 S.W.3d 293, 295 (Tex. App.—

Dallas 2005, no pet.). When reviewing a summary judgment the court must

examine the entire record in the light most favorable to the nonmovant, and must

indulge every inference and resolve all doubts against the motion. City of Keller v.

Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005). With a hybrid motion the court first

addresses whether the nonmovant presented evidence to controvert the no-evidence

motion then moves to the lower standard of the traditional motion. Ford Motor Co

v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2000).




                                         5
                                    Argument

A. The Trial Court Erred in Granting Antler’s No-Evidence Motion for
Summary Judgment Because Aranda Presented Evidence of Each Element of
Her Claim

      Antler raised issue with four of the six elements of Aranda’s premises claim.

Wal-Mart Stores, Inc v. Gonzalez, 968 S.W.2d 924, 936 (Tex. 1998). A No-

Evidence Summary Judgment can only be granted based on those elements

specifically raised. TEX. R. CIV. P. 166a(i); Boerjan v. Rodriguez, 436 S.W.3d 307,

310 (Tex. 2014).

      1) The Ledge Posed an Unreasonable Risk of Harm

      An unreasonably dangerous condition is one in which there is sufficient

probability of a harmful event occurring that a reasonable prudent person would

have foreseen the likelihood of that harmful event. Seideneck v. Cay Bayreuther

Assocs., 451 S.W.2d 751, 754 (Tex. 1970). These are fact intensive inquiries, and

therefore often best left to a jury’s determination. Reliable Consultants, Inc. v.

Jaquez, 25 S.W.3d 336, 342 (Tex. App.—Austin 2000, pet. denied). Though not an

objective test, courts often consider many factors including: 1) whether the

condition was clearly marked; 2) the height of the condition; and 3) whether the

condition met applicable safety standards. Cohen v. Landry’s Inc., 442 S.W.3d

818, 827 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).




                                        6
      Here, the combination of bad lighting and the step was an unreasonably

dangerous condition. First, the condition was not marked in any way. C.R. 183

(photographs showing no marking). Second, both the ledge and the poor lighting

violated building codes adopted into law. C.R. 180. The riser heights, the tread

depth, and the difference between them did not comply with building codes. C.R.

180. The difference in riser heights was almost three times that which was allowed

by regulation. C.R. 180. Finally, the ledge was unique for the unit. C.R 97 Pg

10:22-24. The riser was too high and unexpected. Both the violation of safety

standards and the unusual height is evidence of an unreasonably dangerous

condition. Id. Antler’s employees admit that the bad lighting was a problem and

apologized for the condition. C.R. 75 Pg 44:24-25. The ledge makes things worse.

      Moreover, the danger was foreseeable because stepping over the ledge was

the natural course anyone would take into the unit. C.R. 183 (photographs showing

the entrance). The ledge is made more dangerous by the common activity people

would be doing in the area. It was an entrance, where people’s views would be

obstructed by carrying or moving heavy objects. Because the evidence presented

shows this was a dangerous, poorly lit step, Antler’s summary judgment must be

denied.




                                        7
   2) Antler Knew or Reasonably Should Have Known of the Dangerous
      Ledge;

      When plaintiff is an Invitee a possessor’s knowledge of a dangerous

condition can be actual or constructive. Del Lago Partners v. Smith, 307 S.W.3d

762, 769 (Tex. 2010). Proof of constructive knowledge requires that the condition

exist long enough for the possessor to discover it through reasonable inspection.

CMH Homes, Inc v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2003). The “time-notice

rule” is based on the premise that the longer a danger exists the more likely the

owner had a reasonable opportunity to discover and remedy the condition. Id.

Whether a reasonable time has passed is based on all facts and circumstances. Id.

      Here, the construction was done in 1996. C.R. 180 (“Appraisal District

reported 1996 construction date.”) This alone would give ample amount of time to

inspect and determine that the ledge was dangerous. Id. Additionally, the Antler

employee’s apology about the poor lighting shows that an inspection of the poorly-

lit area, including the ledge, was completed recently. Because Aranda presented

evidence that Antler knew or should have known of the condition, its summary

judgment must be denied.

   3) Antler Never Warned of the Dangerous Ledge

      As the possessor of real property, Antler had the duty to warn about or make

safe any unreasonably dangerous conditions of which it or should have known.

Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014). To be adequate, a
                                         8
warning must be more than a general warning instruction, but rather it must warn

of the particular condition. Id. at 252. (citing TXI Operations, LP. v. Perry, 278

S.W.3d 763, 764-65 (Tex. 2009)). The fundamental question is whether the

warning fulfills the duty to do “whatever action is reasonably prudent under the

circumstances to reduce or to eliminate the unreasonable risk from that condition.”

Id. at 265. (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.

1983)). For example, a speed limit sign is not a warning for a pothole. Id. A

warning to drive “slow” is not warning of the actual condition of a construction

area which was muddy and slick when wet. State v. McBride, 601 S.W.2d 552,

556-57 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.). A vague sign to “be

careful” may be “some evidence that the premises owner was not negligent, but it

is not conclusive.” TXI Operations, LP, 278 S.W.3d at 765. That an invitee

followed the sign’s instructions and the incident still occurred is evidence of the

warnings inadequacy. Id.

      First, there is evidence that Antler failed to fix the unreasonably dangerous

condition. Norman Cooper determined that the riser heights, the tread depth, and

the difference between the riser heights did not comply with cited building codes

and laws. C.R. 180. Defendant therefore failed in every way to attempt to remedy

the condition.




                                         9
      Second, the warning given by Antler regarding the ledge was completely

deficient. Antler warned of the bad lighting. C.R. 76 Pg 48:24-49:4. No other

warnings about the unit were given. C.R. 76 Pg 48:24-49:4. There was no marking

on the ledge. C.R. 183. Taking the context of the totality of the circumstances,

Aranda was not warned of the inconspicuous and high ledge. See Henkel, 441

S.W.3d at 252. It is impossible to infer that there was a dangerous ledge from the

instruction about lighting. Compra, Id. (The warning “don’t slip” allows for the

inference of a slippery walkway.). Moreover, Aranda’s behavior following the

warning about lighting shows how inadequate the warning was. TXI Operations

LP, 278 S.W.3d at 765. (Following the directive and still getting injured is

evidence of the directive’s inadequacy.).    Aranda, knowing only of the bad

lighting, drove her truck around to the storage unit to improve the poor lighting

condition. C.R. 75 Pg 45:1-2. Aranda then walked into the storage unit with boxes

in hand, as would be expected, and tripped on the unexpected ledge. C.R. 70 Pg

16:10-12. Because she was never warned of the ledge, Antler failed in its duty to

warn of the unreasonably dangerous condition.

      4) Aranda Tripped on the Ledge

      To prove an action for premises liability, the invitee must establish the

breach of duty proximately caused the plaintiff’s injuries. Del Lago Partners v.

Smith, 307 S.W.3d 762, 767 (Tex. 2010). The components of proximate cause are


                                       10
(1) cause in fact and (2) foreseeability. Western Invs. v. Urena, 162 S.W.3d 547,

551 (Tex. 2005). If foreseeability is addressed under the element of duty, it need

not be addressed again under proximate cause. Mellon Mortg. Co. v. Holder, 5

S.W.3d 654, 659 (Tex. 1999) (plurality op.)

      Cause-in-fact requires evidence that the premises defect was a substantial

factor in bringing about the injury. Del Lago Partners., 307 S.W.3d at 774. Here,

there is direct evidence that the premises defect caused the injury. Aranda testified

that she “didn’t know there was an edge there and I hit it with my right foot and

tripped into the storage room….” C.R. 70 Pg 16:10-12. At the time she did not

know on what she fell. Id. Patricia, her sister that was unpacking the truck, saw

Aranda on the ground after she fell. C.R. 97 Pg 7:6-9. She saw that Aranda tripped

going into the unit. C.R. 98 Pg 11:6. She also thought that Aranda fell on the ledge.

C.R. 98 PG 11:7. Karen Short, another friend that was loading the storage unit,

heard Aranda fall at the storage unit. C.R. 113 Pg 9: 2-12. On later inspection

Aranda and her sister realized it was the ledge on which she fell. Her sister

identified that the ledge was much higher than the other units. C.R. 97 Pg 10: 21-

23. Based on this testimony Norman Cooper, a professional engineer, determined

that the improper riser tread caused Aranda’s injury. C.R. 180. All this evidence

points to the fact that Aranda tripped on the ledge.




                                          11
      Antler relies on two cases to characterize Aranda’s testimony as mere

inference. Neither is factually on point. Marathon Corp was a decision about

expert testimony and the necessity for something more. Marathon Corp v. Pitzner,

106 S.W.3d 724 (Tex. 2003). In Marathon plaintiff alleged he fell off a roof, and

was unable to testify as to what caused the fall. Id. at 726. The plaintiff presented

evidence by experts showing he likely fell off the roof when he “reached into the

access panel, came into contact with a high-voltage wire, was shocked, stumbled

back, and fell off the building.” Id. at 729. The Texas Supreme Court, however,

determined that “because there was no proof that the units inside the building had

been shut off” the series of events, though reasonable, was not supported by a key

factual assumption. Id. The evidence “could give rise to any number of

inferences.” Id. There was so little direct testimony that the jury would not even be

sure if he fell off the roof. Id. It was equally likely that plaintiff had been assaulted

because no one could testify to the contrary. Id. Slight circumstantial evidence is

not enough, but rather “something else must be found in the record to corroborate

the probability of the fact’s existence or non-existence.” Id. quoting Hammerly

Oaks, Inc v. Edwards¸ 958 S.W.2d 387, 392 (Tex. 1997).

      The other case on which Antler relies is Sweet v. Flow Force Plumbing,

L.L.C. NO 05-12-01688-CV 2014, Tex. App. Lexis 5125 (Tex. App.—Dallas May

13, 2014, no pet.). There, plaintiff used the shower after repairs were made by the


                                           12
defendant. Id. at *1. A full day after the shower, plaintiff pulled off his shoe to find

his foot had been bleeding. Id. Looking around his home the next day, he noticed a

screw in the shower. Id. He concluded that he must have cut his foot in the shower

on the prior day. Id. The court followed Marathon, and determined there was not

enough evidence to hold defendant liable because “it is equally possible that Sweet

injured his foot during the period of time after his shower and before he remove his

flip-flops that evening.” Id. at *6. There was no evidence that connected the injury

to the shower temporally because there was no evidence that he was not injured

between the shower and the time he noticed the bleeding. Id. Therefore, the court

concluded there was not enough evidence to support the theory that plaintiff was

injured in the shower.

      Both cases are factually distinct because the death of direct testimony

required more assumptions by the finder of fact. In each case the very basics of the

injury were unclear. In Marathon there was no witness testimony identifying

where the injury was, or how the injury happened. The jury could have easily also

believed an assault had occurred. In Sweet he could have been injured by anything

between the shower and the time he noticed his foot. Here, there is no question

about several fundamental issues that were not known about either Marathon or

Sweet.

    Aranda tripped C.R. 70 Pg 16:3-4.

                                          13
    Aranda tripped around 6:20-6:40 C.R. 70 Pg 1:13-15

    Aranda tripped going into the storage unit owned by Antler. C.R. 98 PG

      11:6.

A similar recitation of facts could not be given about Marathon or Sweet. Each of

these facts is backed by evidence and show that Aranda’s injuries were caused by

the unreasonably dangerous condition. Therefore, Antler’s No-Evidence Motion

for Summary Judgment must be denied.

      The degree of particularity in what caused the injury is also clear here and

was not in either Marathon or Sweet. The greater the range of possible injuries, the

more assumptions would naturally need to be made to show one thing caused an

injury. Without knowing specific details, the realm of possibility expands. In

Marathon, Pitzner was believed to be working on the roof, and then found later in

the parking lot with a head injury. Marathon, 106 S.W.3d at 726. Based on just

that information the possible causes of injury are endless. This is evidenced by the

fact that EMS initially reported the injury as an assault. Id. Similarly in Sweet there

was little direct evidence of what caused the injury. All that was known was

plaintiff was injury free and then he was not. The nail was certainly a plausible

source of the injury but there was little evidence actually placing it as the cause of

injury. The possible other causes are endless.




                                          14
      Here, there is a fundamental piece of evidence that did not exist in the

others. Several other people saw that she in fact did trip and where she tripped. The

question is not how she was injured (like in Marathon) or where she was injured

(like in Sweet) but on what did she trip on the Antler property at around 6:00 PM.

The evidence points to the ledge.

      Antler would ask the court to hold that Aranda’s testimony is not evidence

because she was not aware of what she tripped on at the time she tripped on it.

That holding, and the conclusion that Aranda’s testimony (and the testimony of her

friends) is not enough to present a fact issue, would dramatically change the

evidentiary requirements of premises cases. Premises cases are built on inference.

Plaintiffs do not trip on hazards of which they knew prior to tripping. Injured

plaintiffs are often more worried about getting treatment over investigating

premises liability issue. Only a Plaintiff’s lawyer would be so inclined.          A

requirement that a plaintiff immediately investigate the cause of the injury would

ultimately bar any serious case where plaintiff is unable to investigate the incident

due to seriousness of the injury or for other extenuating factors. It would also bar

any case where plaintiff was injured without the benefit of a third party witness to

see the specific cause of the injury. Such a ruling would gut premises liability.

Therefore, this court must hold that Aranda presented a fact issue regarding

whether her injuries were caused by the ledge.


                                         15
      Because Aranda presented evidence showing a fact issue regarding all

complained elements, Antler’s Traditional and No-evidence Motions for Summary

Judgment must be denied.

B. The Trial Court Erred in Granting Antler’s Traditional Motion for
Summary Judgment

      1) Antler Did not Present Evidence that Aranda’s Injuries were Not
      Caused by the Incident or that they Warned her

      In its Traditional Motion for Summary Judgment Antler presented

arguments regarding only two elements: 1) causation; and 2) breach. C.R. 44-53.

Antler also addressed causation as it relates to Aranda’s negligence per se claim.

C.R. 53. Because Antler did not raise the other issues the court cannot grant a

summary judgment based on these elements. G&H Towing Co v. Magee¸347

S.W.3d 293, 297 (Tex. 2011).

      Antler’s Traditional Motion for Summary Judgment cannot be granted

because it failed to present testimony that it remedied the condition. “For a

defendant to be entitled to summary judgment it must disprove, as a matter of law,

one of the essential elements of each of plaintiff’s causes of action. Lear Siegler,

Inc v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (emphasis in original). As

discussed above, the only evidence presented about potential remedies to the

condition was Antler’s apology about bad lighting. An inadequate warning is not

conclusive evidence that no fact issue exists. TXI Operations, LP, 278 S.W.3d at


                                        16
765. Reasonable jurors could disagree about whether a warning about bad lighting

is also a warning that a ledge is too high. Because Antler did not present evidence

that it fulfilled its duty to remedy the condition as a matter of law its summary

judgment must be denied.

      Antler’s Traditional Summary Judgment must also be denied because it

failed to present evidence that the premises defect caused the injury as a matter of

law. Lear Siegler, Inc., 819 S.W.2d at 471. First, Antler failed to present evidence

that no fact issue existed regarding the element of causation. The trial court

correctly sustained Aranda’s objections to the evidence regarding the marijuana

use and did not consider such evidence. C.R. 200. Antler is left without evidence

more than “she was wobbly.” “Accidents happen” is argument, not evidence and

therefore, Antler failed to present evidence to show no fact issue existed. Because

Antler failed in its initial burden of presenting evidence that no fact issue existed

regarding cause, Antler’s Summary Judgment must be denied.

      2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous
      Condition Caused Aranda’s Injury as Well as Whether Antler
      Breached its Duty to Remedy The Condition.

      As addressed above in response to Antler’s No-Evidence Motion for

Summary Judgment, Aranda presented evidence that she tripped on the ledge as

well as the fact that Antler’s only attempt to remedy the danger was to warn of half

the danger. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013)


                                         17
Presenting evidence to surpass the no-evidence motion also surpasses the

traditional motion. Id. Because Aranda presented evidence of fact issues regarding

all elements of her claim, Antler’s Motion for Summary Judgment must be denied.


Negligence Per Se

      The trial court incorrectly granted Antler’s Traditional Motion for Summary

Judgment as to Aranda’s negligence per se claim. The duties that arise under a

negligence and negligence per se claim are by definition distinct. Nixon v. Mr.

Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) (looking to the

ordinance rather than whether there was an unreasonably dangerous condition to

see if a duty exists). Antler presents no evidence that this was not an issue of

negligence per se. Evidence presented by Aranda shows that both the ledge and

lighting violated local laws and ordinances. C.R. 179-184. Antler only addresses

the issue of causation. Once again because Aranda showed that the ledge, violative

of local laws and ordinances, was what caused her to trip, the trail court incorrectly

granted Antler’s Traditional Motion for Summary Judgment.

                                    Conclusion

      In response to Antler’s no-evidence motion for summary judgment Aranda

presented evidence that the ledge on which she tripped was an unreasonably

dangerous condition. It was taller than the units around it, and a violation of local

ordinance. Aranda also presented evidence Antler did not warn of the ledge, but
                                         18
merely warned of the bad lighting. It also did not mark, or attempt to remedy the

ledge. The ledge also existed for approximately twenty years, certainly long

enough for Antler to identify the dangerous condition. Finally, Aranda presented

both her testimony, and the supporting testimony of her friends that she tripped on

the dangerous ledge. The evidence presented is more than a stack of inferences, but

the direct testimony of Aranda and her friends. Because Aranda presented evidence

supporting all elements complained, Antler’s No-Evidence Motion for Summary

Judgment must be denied.

      Moreover, Antler failed to present evidence that no fact issue existed

regarding whether they warned of the danger and whether the breach caused the

injury. Antler only presented evidence that it warned of the lighting, not the ledge,

which cannot support a summary judgment. It also presented no evidence that the

ledge did not cause her to trip. Because Antler failed to present evidence to show

no fact issue existed regarding the complained elements, its Traditional Motion for

Summary Judgment must therefore be denied.

                                      Prayer

      Aranda never meant to trip. She did not do a pre-trip inspection analyzing

possible hazards and their relative dangers. She did not do a post-trip inspection

immediately following the incident testing for forensics or other clues to narrow

down the inferences she may need to make in coming litigation. She tripped and


                                         19
tried, to get on with her life like normal. To require more of her belies the fact that

law is built not of science but of humanity.

      For the reasons stated in the brief Appellant prays the Court reverse the

order granting Antler’s Motion for Summary Judgment, and it remand the matter

back to the trial court so that Susan Aranda may get her day in court.



                                       Respectfully submitted,

                                        THE CARLSON LAW FIRM, P.C.
                                        11606 N. IH-35
                                        Austin, Texas 78753
                                        Telephone: (512) 346-5688
                                        Fax: (512) 719-4362


                                        By:_/s/ Robert L. Ranco
                                        Robert L. Ranco
                                        SBN: 24029785
                                        Rranco@carlsonattorneys.com
                                        Roberto Flores
                                        SBN: 24074211
                                        Rflores@carlsonattorneys.com




                                          20
                             Certificate of Service


      I certify that a true and correct copy of the foregoing was served in
accordance with Texas Rules of Civil Procedure and Texas Rules of Appellate
Procedure on this 16th day of December 2015 to all counsel of record.
Attorney:                                 Served by
 Sharon D. Hobbs                        __X_ Facsimile:
Hallen, Stein & Drurbin, PC             ____ Email:
6243 IH-10 West                         __X_ E-service:
7th Floor                               ____ CMRRR:
PO Box 101507                           ____ Other:
San Antonio, Texas 78201


                                            _/s/ Robert L. Ranco
                                            Robert L. Ranco




                           Certificate of Compliance


I certify that this document was produced on a computer using Microsoft Word

2007 and contains 4,093 words as determined by the software’s word-count

function, excluding the seconds of the document listed in Texas Rule of Appellate

Procedure 9.4(i)(1).


                                                      /s/ Robert L. Ranco
                                                      Robert L. Ranco
                                                      Roberto Flores




                                       21
                                   Appendix

1) Order Granting Defendant’s Motion for Summary Judgment

2) Order Sustaining Plaintiff’s Objection to Defendant’s Evidence




                                       22
                                 DC                  BK15212 PG763                Filed in The District Court
                                                                                      of Travis County, Texas

                                                                                           JUL 2 3 2015            0
                                                                                 At           /) t'8Q A_M.
                                 NO. D-1-GN-13-000525                             Velva L. Price, District Clerk

SUSAN ARANDA                                           §                   IN THE DISTRICT COURT
                                                       §
vs.                                                    §
                                                       §                   98TH JUDICIAL DISTRICT
THE CINDY SUE WILLIE PARTNERSHIP                       §
TRUST, and THE WILLIE LIMITED                          §
PARTNERSHIP D/B/A ANTLER MINI                          §
STORAGE                                                §                   TRAVIS COUNTY, TEXAS

  ORDER GRANTING DEFENDANT'S, THE WILLIE LIMITED PARTNERSHIP D/B/A
               ANTLER MINI STORAGE, TRADITIONAL AND
           NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

       ON THE 29th day of June, 2015, the Court heard Defendant's, THE WILLIE

LIMITED PARTNERSHIP D/B/A ANTLER MINI STORAGE, Traditional and No-

Evidence Motion for Summary Judgment. The Court considered Defendant's Motion

and its supporting Affidavits and Exhibits, Plaintiff's Second Amended Petition, Plaintiff's

Response to Defendant's Motion for Summary Judgment, argument of counsel, and all

things the Court is entitled to consider, and GRANTS Defendant's Traditional and No-

Evidence Motion for Summary Judgment.

       It is, therefore, ORDERED, ADJUDGED, AND DECREED that Defendant's

Traditional and No-Evidence Motion for Summary Judgment is GRANTED; judgment is

entered in favor of Defendant, THE WILLIE LIMITED PARTNERSHIP D/B/A ANTLER

MINI STORAGE, and against Plaintiff.            It is further ORDERED, ADJUDGED, AND

DECREED that Plaintiff take nothing by her suit against Defendant, THE WILLIE

LIMITED PARTNERSHIP D/B/A ANTLER MINI STORAGE, with costs to be incurred by

the party incurring same.~

      SIGNEDthe.z:i~f ~                                    ,2015 .



                                      .     JUD~CHUM
#1322613/5244-028/SH
                                 1111111111111111111111111111111111111111111111111111111
                                 004133733
                                                                                                                       201
                                         DC                 BK15212 PG764
                                                                                            Filed in !he District Court
                                                                                             of Travis County, Texas



                                    CAUSE No. D-1-GN-13-000525
                                                                                       At
                                                                                         -
                                                                                                 JUL ~; 2015
                                                                                                   / / 0 ()      z1M
                                                                                                                    c1J
                                                                                       Velva L p ·             -    ·
                                                                                              · nee, District Clerk
SUSAN ARANDA                                                  §         IN THE DISTRICT COURT OF
                                                              §
                                                              §
v.                                                            §              TRAVIS COUNTY, TEXAS
                                                              §
THE CINDY SUE WILLIE PARTNERSHIP                              §
TRUST, AND THE WILLIE LIMITED                                 §
PARTNERSHIP D/B/A ANTLER MINI                                 §
STORAGE                                                       §             98TH JUDICIAL DISTRICT                           t



                                                    ORDER


       After careful consideration of the Plaintiffs Objections to Defendant' s Traditional and

No-Evidence Motion for Summary Judgment, the evidence, the pleadings and the arguments, the

Court SUSTAINS Plaintiffs Objections to Defendant's references to an alleged drug use on the

day of the incident and whether Plaintiff had a drug addiction.

       SIGNED on this     23rd   day of July, 2015.




                                                                      ~-------
                                                                      Judge, 201 st District Court
                                                                      Travis County, Texas




              ~~~~ J!~JJIIIIIIIIIIIIIII/111111111111 1111111111111

                                                                                                                       200
