                    In the
               Court of Appeals
       Second Appellate District of Texas
                at Fort Worth
             ___________________________
                  No. 02-17-00404-CV
             ___________________________

            NORMAN DELAMAR, Appellant

                            V.

FORT WORTH MOUNTAIN BIKER'S ASSOCIATION, Appellee



         On Appeal from the 348th District Court
                 Tarrant County, Texas
             Trial Court No. 348-283758-16


       Before Sudderth, C.J.; Gabriel and Pittman, JJ.
      Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

                                   I. Introduction

      Appellant Norman DeLamar filed the underlying lawsuit against Appellee Fort

Worth Mountain Biker’s Association (the Association) to recover for injuries he

sustained when he was knocked off of his mountain bike after he struck a downed

tree across a mountain bike trail at Gateway Park (Gateway). Norman claimed that

the Association was negligent in failing to properly maintain a safe mountain bike trail

as purportedly required by its contractual agreement with the City of Fort Worth

(City). The trial court granted summary judgment on Norman’s claims against the

Association. We will affirm.

                                   II. Background

      On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a

park owned by the City, when he came upon a downed tree resting across the trail at

head level. Although known to be a “really good rider,” Norman asserts that because

he did not have time to stop or avoid the tree, the tree “clotheslined” his head and

neck and knocked him off of his bicycle, causing him injuries.

      Norman sued the City, asserting claims of general negligence and gross

negligence.   In a single pleading, the City filed an answer and identified the

Association as a responsible third party because of an “Adopt-A-Park Agreement”

(Contract) that made the Association “responsible for constructing and maintaining

the bike trail in question.”    Norman then amended his petition and added the
                                           2
Association as a defendant in the suit.1 Norman asserted that through the Contract,

the Association agreed to “assume responsibility for maintenance, construction and

safety of the trails,” and as such owed “a duty to protect the general public from

dangerous conditions such as falling trees.” Norman claimed that the Association had

breached this alleged duty by

   • failing to make any effort to ensure that the trees alongside of the bicycle
     trail were not a danger to cyclists;

   • failing to implement any sort of safety procedure with respect to the
     danger of falling trees in high bicycle (and pedestrian) traffic areas;

   • failing to maintain the trails to prevent dangerous conditions from
     occurring despite knowing the dangers associated with cycling;

   • failing to provide cyclists with adequate safeguards, or any safeguards at
     all, to prevent dangerous conditions from occurring; and

   • consciously disregarding the heath of the trees and the danger that they
     pose.

      The Contract provides that the Association “shall perform all work and

services hereunder as an independent contractor . . . . [and] shall have exclusive

control of, and the exclusive right to control the details of the work performed

hereunder[.]” The Contract specifically provides that the Association “shall, at its sole

cost and expense, construct and maintain the Trails in accordance with [the]

Agreement,” and it defines “trail maintenance” as including, but not limited to,

      1
       Norman’s suit against the Association for negligence and gross negligence was
eventually severed from his suit against the City.

                                           3
“repairing, replacing, and rebuilding trails or sections of trails that are eroding or in

disrepair; pruning of trees; [and] removal of brush[.]”        However, the Contract

prohibits the Association from “trimming and pruning, until written approval is obtained

from the Director [of the Parks and Community Services Department],” and from

“remov[ing] any tree without prior written permission from the City Forester.” [Emphasis

added.] Finally, the Contract expressly reserves the City’s right to control and access

all portions of Gateway: “The City does not relinquish the right to control the

management of the Parks, or the right to enforce all necessary and proper rules for

the management and operation of the same. The City . . . has the right at any time to

enter any portion of the Parks[.]”

      The Association answered and then filed a no-evidence and traditional motion

for summary judgment. In its motion, the Association asserted that there was no

evidence that

   • the Association was negligent as it owed Norman no duty with respect
     to the condition of the premises; or

   • the Association owed a duty to keep the premises in reasonably safe
     condition, inspect the premise to discover any defects, or to make safe
     any defect or give an adequate warning of any dangers.

Although the Association clearly challenged the existence of any legal duty it owed to

Norman, the Association’s motion primarily argued that Norman’s claim sounded in

premises liability rather than general negligence and that he could not artfully plead a

general negligence claim when his injuries were caused by a premises defect. Norman

                                           4
filed a response and attached, inter alia, a short affidavit and an expert report from an

arborist, Matthew Clemons.        In his response, Norman appeared to adopt the

Association’s characterization of his claim as one for premises liability and in doing so

focused on his status, arguing that he was an invitee. Indeed, Norman’s “Conclusion”

sought denial of the summary judgment motions because there was “more than

enough credible evidence to find that the [Association] is liable under a premises liability

theory for this incident[.]” [Emphasis added.] The Association filed a reply and

objected to the expert report from Clemons as inadmissible hearsay.

       Following the hearing on the Association’s no evidence and traditional motions

for summary judgment, the trial court requested letter briefs and took the matter

under advisement. In his letter brief, Norman altered his prior position and for the

first time asserted that the Association’s summary judgment theory was flawed

because his suit against the Association was based on a general negligence theory, not

a premises liability theory. The trial court signed an order sustaining the Association’s

objections to Clemons’s expert report and a separate order granting the Association’s

no evidence and traditional motions for summary judgment.

       On appeal, Norman contends the trial court erred by construing his claim as

one for premises liability rather than general negligence and abused its discretion by

sustaining the Association’s hearsay objection to Clemons’s report.




                                             5
                           III. Norman’s Negligence Claim

A. Standard of Review

      The movant for traditional summary judgment has the burden of showing that

there is no genuine issue of material fact and that it is entitled to judgment as a matter

of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548

(Tex. 1985). A defendant who conclusively negates at least one essential element of

the nonmovant’s cause of action is entitled to summary judgment as to that cause of

action. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the

movant has established a right to summary judgment, the nonmovant has the burden

to respond to the motion and present to the trial court any issues that would preclude

summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79

(Tex. 1979). The only question is whether an issue of material fact is presented. See

Tex. R. Civ. P. 166a(c).

      After an adequate time for discovery, a party without the burden of proof at

trial may move for summary judgment on the ground that there is no evidence of one

or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). Once a

no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts

to the nonmovant to bring forth evidence that raises a fact issue on the challenged

evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston

[1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment

under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v.
                                            6
Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence motion is properly

granted if the nonmovant fails to bring forth more than a scintilla of probative

evidence to raise a genuine issue of material fact as to an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at trial.

See id. at 751. If the evidence supporting a finding rises to a level that would enable

reasonable, fair-minded persons to differ in their conclusions, then more than a

scintilla of evidence exists. Id. A mere scintilla of evidence exists when the evidence

is so weak as to do no more than create a mere surmise or suspicion of a fact, and the

legal effect is that there is no evidence. See id.

       When reviewing traditional and no evidence summary judgments, we perform a

de novo review of the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the motion. See

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty.

Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain

the credibility of affiants or to determine the weight of evidence in the affidavits,

depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252

S.W.2d 929, 932 (Tex. 1952); Palestine Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 508

(Tex. App.—Tyler 2008, pet. denied).

       All grounds in support of or in opposition to a motion for summary judgment

must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). “When a

trial court’s order granting summary judgment does not specify the ground or grounds
                                              7
relied on for the ruling, summary judgment will be affirmed on appeal if any of the

theories advanced are meritorious.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374,

380 (Tex. 1993).

       When a party moves for both a traditional and a no evidence summary

judgment, we generally first review the trial court’s summary judgment under the no

evidence standard of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004). If the no evidence summary judgment was properly granted, we need

not reach arguments under the traditional motion for summary judgment. See id.

B. General Negligence vs. Premises Liability Theories of Recovery

       Although premises liability is a form of negligence, “[n]egligence and premises

liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to

prove different, albeit similar, elements to secure judgment in their favor.” United

Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v.

Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (stating that “[b]ecause premises defect cases

and negligent activity cases are based on independent theories of recovery, a simple

negligence [jury] question . . . cannot support a recovery in a premises defect case”);

E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57–58 (Tex. App.—Houston

[14th Dist.] 2014, pet. dism’d) (“Because [claimant] was limited to a premises liability

theory of recovery, . . . the trial court erred when it submitted an ordinary negligence

cause of action against [appellant] to the jury. . . . Accordingly, the jury’s finding that

[appellant] was negligent is immaterial and cannot support a judgment against
                                              8
[appellant].”). As our sister court has explained, premises liability is a “special form of

negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status

on the premises at the time of the incident.” Wyckoff v. George C. Fuller Contracting Co.,

357 S.W.3d 157, 163–64 (Tex. App.—Dallas 2011, no pet.) (citing Scott & White Mem’l

Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)).2

      While, theoretically, a litigant may maintain causes of action for both general

negligence and premises liability, to be viable, the general negligence theory of

recovery must be based not upon an injury resulting from the condition of the

property, but upon the defendant’s contemporaneous activity. See Mangham v. YMCA

of Austin, Texas-Hays Comtys., 408 S.W.3d 923, 929 (Tex. App.—Austin 2013, no pet.);

see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (analyzing claimant’s

negligence and premises liability claims together). If the injury is one caused by a

premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot

circumvent the true nature of the premises defect claim by pleading it as one for

general negligence. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016).


      2
       To prevail on a premises-liability claim, a plaintiff must prove (1) actual or
constructive knowledge of some condition on the premises by the owner; (2) that the
condition posed an unreasonable risk of harm; (3) that the owner did not exercise
reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use
such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez,
968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of
negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a
breach of that duty; and (3) damages proximately resulting from the breach. Helbing v.
Hunt, 402 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

                                            9
       Because the lines between negligent activity and premises liability are

“sometimes unclear,” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010),

determining whether a claim is one for a premises defect or general negligence “can

be tricky.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question

answered, 465 S.W.3d 193 (Tex. 2015). The policy undergirding this distinction is that

negligence encompasses a malfeasance theory based on affirmative, contemporaneous

conduct that caused the injury, whereas premises liability encompasses a nonfeasance

theory based on the owner’s failure to take measures to make the property safe. See

Del Lago Partners, 307 S.W.3d at 776; Timberwalk Apartments, Partners, Inc. v. Cain, 972

S.W.2d 749, 753 (Tex. 1998) (explaining negligent activity concerns “simply doing or

failing to do what a person of ordinary prudence in the same or similar circumstances

would have not done or done” while premises liability concerns the “failure to use

ordinary care to reduce or eliminate an unreasonable risk of harm created by a

premises condition which the owner or occupier [of land] knows about or in the

exercise of ordinary care should know about” and quoting Keetch v. Kroger Co., 845

S.W.2d 262, 266–67 (Tex. 1992)).

C. Discussion

       In his first issue, Norman argues that the trial court erred by granting summary

judgment on a premises liability theory when his claims sounded in general negligence:

“The Association characterized [my] lawsuit against it as one for premises liability.

This argument is flawed because the Association was not the possessor of the
                                             10
premises when [I] was injured[.]”       Norman argues that his “petition is fairly

constructed as advancing an ordinary negligence claim” because he pleaded that the

Association is liable for “failing to employ any procedure to ensure safety from falling

trees, and for failing to maintain a safe bike path and the trees along it.” The

Association responds that regardless of how Norman pleaded his claim, he is limited

to a premises liability theory of recovery because Norman was injured by an unsafe or

dangerous condition on the premises—not by contemporaneous negligent activity.3

      1. Summary Judgment was Not Granted on an Unaddressed Claim
      Because the Association’s Motion for Summary Judgment Challenged
      the Existence of a Legal Duty

      As a preliminary matter, we consider Norman’s contention that the trial court

improperly granted summary judgment on his negligence claim when the

Association’s motion for summary judgment actually addressed only an unpleaded

premises-liability claim. See Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.

1983) (stating it is reversible error to grant summary judgment on a claim not

addressed in the motion). Three of our sister courts have addressed similar instances

in which defendants filed summary judgment motions on the theory that the plaintiff


      3
        The Association asserts it is a “non-possessory interest holder” which is “the
legal equivalent of the occupier” of the bike trail portion of Gateway. Put differently,
the Association contends it has rights akin to that of an easement holder. See
Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 309 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (“[A]n easement is a nonpossessory interest in
another’s property that authorizes its holder to use that property for a particular
purpose.”).

                                          11
had impermissibly pleaded a premises defect claim as a general negligence claim. See

Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied); Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 WL

2867372, at *4 (Tex. App.—Austin July 20, 2010, no pet.) (mem. op.); Kalinchuk v. JP

Sanchez Construction Co., No. 04-15-00537-CV, 2016 WL 4376628, at *3 (Tex. App.—

San Antonio Aug. 17, 2016, no pet.) (mem. op.).

       In Griffin, the First District Court of Appeals considered whether “the trial

court erred in granting summary judgment in favor of Shell and CH2M on his

negligent-activity claims because neither Shell nor CH2M sought summary judgment

on these claims.” 401 S.W.3d at 157. After stating that a trial court errs by granting

more relief requested by disposing of issues not presented to it in the summary

judgment motion, the First court analyzed each defendant’s summary-judgment

motion and held that based “upon the plain language,” the defendants sought

summary judgment “only on [appellant’s] premises-defect claim” and not his negligent

activity claim. Id. at 158–59. Thus, the First court reversed summary judgment on

appellant’s negligence claim and remanded the case. Id. The First court did note,

however, that “[a] legal duty must be established in order for [appellant] to ultimately

recover on his negligent-activity claim[,]” id. at 163 n.4, thus signaling its concern over

the viability of appellant’s negligence claim.

       In Somoza, the plaintiff had been injured while operating a jet ski when he

allegedly ran into a partially submerged steel cable tethered to a floating dock, near the
                                            12
marina owned and operated by a yacht club. Somoza, 2010 WL 2867372, at *1. He

filed suit against the yacht club and alleged negligence and premises liability claims. Id.

The yacht club filed a hybrid no evidence and traditional motion for summary

judgment, asserting, in part, that the plaintiff “has no claim for general negligence . . .

because his negligence claim sounds solely in premises liability,” and that the plaintiff

has “produced no evidence of the essential elements of duty, breach, or proximate

cause.” Id. The trial court granted the motion.

       On appeal, the Third District Court of Appeals considered the plaintiff’s

contention that the trial court improperly granted summary judgment on his general

negligence claim. Id. at *4. The Third court “assum[ed] without deciding that [the

plaintiff] could bring a claim for general negligence despite his failure to allege injury

resulting from any contemporaneous activity by the Yacht Club” and nevertheless

concluded that “he has still failed to establish the existence of a duty to support a

claim in negligence.” Id. at *5.

       In Kalinchuk, the plaintiff filed a lawsuit against his putative employer for

negligence and gross negligence after he was injured at a baseball field renovation site

by a section of bleachers that fell on him. 2016 WL 4376628, at *1. The employer

moved for traditional and no evidence summary judgment, and alleged, inter alia, that

the plaintiff did not have more than a scintilla of evidence to establish the existence of

a legal duty. Id. In its motion, the employer relied on cases involving premises

liability claims and asserted that the plaintiff purported to state a claim for negligence
                                            13
when his claim was “actually based on the theory of premises liability because he

[sought] to recover for an injury allegedly created by a condition on the premises

rather than for an injury created as a result of an activity.” Id. at *3. The plaintiff

responded that the employer owed him a common law duty to exercise reasonable

care and avoid a foreseeable risk of harm. Id. The trial court granted summary

judgment. Id.

       On appeal, the Fourth District Court of Appeals reasoned that “[w]hether

[plaintiff’s] claim is a claim for negligence as he argues or a premises liability claim as

[employer] contends, the question of whether a duty exists remains the same in that it

requires a balancing of interrelated factors that make up the risk-utility balancing test.”

Id. After applying the risk-utility balancing test to the facts of the case, the Fourth

court concluded that the plaintiff had “failed to produce a scintilla of evidence

creating a fact issue to support the existence of [a] legal duty owed to him by [the

employer.]” Id. at *3–4.

       We do not quarrel with the First court’s strict approach in refusing to read into

the summary judgment motion a ground that was not clearly articulated. However,

we view the approach by the Third and Fourth courts as allowing for a more

expedient disposition while maintaining fidelity to Rule 166a(c)’s requirement that

summary judgment motions “state the specific grounds therefor.” Tex. R. Civ. P.

166a(c); Somoza, 2010 WL 2867372, at *5; Kalinchuk, 2016 WL 4376628, at *3–4.


                                            14
       The existence of a legal duty is a threshold issue generally decided as a matter

of law. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). And

even assuming under these facts that Norman could bring a claim for general

negligence, the Association in its motion for summary judgment challenged the

existence of a legal duty owed to him regarding the downed tree and maintenance of

trail safety regardless of whether the duty arose under a premises liability theory based

on Norman’s status at the time of the injury or a general negligence theory balancing

test.4 See Kalinchuk, 2016 WL 4376628, at *3–4 (explaining whether the plaintiff’s

claim is a claim for negligence as he argued or a premises liability claim as the

defendant contended, “the question of whether a duty exists remains the same in that

it requires a balancing of interrelated factors that make up the risk-utility balancing

test”); cf. Del Lago Partners, 307 S.W.3d at 767 (applying risk-utility balancing factors to

determine duty in premises liability case); Wyckoff, 357 S.W.3d at 164 (“General


       4
        Although we do not reach the issue, we believe that Norman’s claim sounds in
premises liability in any event. See United Scaffolding, 537 S.W.3d at 472 (“We have
recognized that slip/trip-and-fall cases have consistently been treated as premises
defect causes of action. In such cases, the plaintiff alleges injury as a result of a
physical condition or defect left on the premises, not as a contemporaneous result of
someone’s negligence.” (internal citation and quotation marks omitted)); Sampson, 500
S.W.3d at 389–90 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010)
(per curiam), a case with injuries caused by a bicycle crash after the cyclist ran over a
metal chain stretched across a college campus driveway as illustrating a “quintessential
premises defect claim”); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230
(Tex. 2004) (concluding that the “allegation of an injury caused by a tree limb falling
on [plaintiff] constitutes an allegation of a condition or use of real property and is an
allegation of a premises defect”).

                                            15
negligence principles apply to a contractor who has left [a] premises in an unsafe

condition.”). Therefore, because the summary judgment motion fairly challenged the

existence of a legal duty, we reject Norman’s contention that the trial court erred by

granting the motion on an unchallenged ground, and we now analyze whether the

Association owed Norman a legal duty under a general negligence theory.

      2. No Legal Duty Under a General Negligence Theory

      The question of legal duty is a “multifaceted issue” requiring courts to balance

a number of factors such as the risk and foreseeability of injury, the social utility of

the actor’s conduct, the consequences of imposing the burden on the actor, and any

other relevant competing individual and social interests implicated by the facts of the

case. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002). “Although the

formulation and emphasis varies with the facts of each case, three categories of

factors have emerged: (1) the relationship between the parties; (2) the reasonable

foreseeability of harm to the person injured; and (3) public policy considerations.” Id.

at 34. Of these factors, the Supreme Court of Texas has identified “foreseeability as

the ‘foremost and dominant consideration’ in the duty analysis.” Id. at 36 (quoting El

Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). “Foreseeability means that a

person who possesses ordinary intelligence should have anticipated the danger that his

negligent act would create for others.” Midwest Emp’rs Cas. Co. ex rel. English v. Harpole,

293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.).                      However,

foreseeability alone is not sufficient to impose a duty. Id.
                                            16
      Here, Norman pleaded that the Association contractually assumed

“responsibility for maintenance, construction and safety of the trails,” and as such,

owed a duty to “protect the general public from dangerous conditions[.]” The record,

which contains the Contract and deposition excerpts, evidences the Association’s

agreement to, and exercise of, some limited control over the construction and

maintenance of Gateway’s bike trails by having monthly meetings to discuss

maintenance issues and by building trails in the months between May and October.

The summary judgment evidence also provided that the Association holds an annual

work day in June to make sure the trails are in “tiptop shape” for their annual “fat tire

festival.” This workday consists of going through the entire trail to look for places

that needed to be trimmed or pruned.

      Lawrence “Larry” Colvin, the Association’s president at the time of Norman’s

crash, testified that during the monthly meetings, the Association’s members

discussed safety of the trees in general as well as identified certain problem trees to

City employees who “were the only ones that [could] operate the chainsaws.” Larry

also testified that the Association had once asked the City to close the trail because of

“so many trees down,” but that the City refused. Larry testified that the Association

worked with Melinda Adams, an “urban forester” with the City, who “[took] a look at

the trees.”   Although Larry acknowledged that the Association had no “tree safety

plan” and had never consulted an arborist, he concluded that even retaining a certified


                                           17
arborist to walk Gateway once a week would still not prevent falling trees in a park

“hundreds of thousands of trees.”

       Larry’s testimony concerning the existence of “hundreds of thousands of trees”

along the mountain bike trail provided proof that the danger of a falling tree was

plausible. And in his deposition, Larry acknowledged that the likelihood of falling

trees would increase in “an unprecedented drought like we were in in 2014”—the year

of Norman’s injury.

       However, Norman testified in his deposition that he had ridden the same trail

“no more [than] two days” earlier and that he had not seen the downed tree, so it was

possible that the tree had fallen only a day or two before his crash. Indeed, Norman

conceded that it was possible that the tree could have actually fallen only a few hours

before his crash. Moreover, the Contract expressly prohibits the Association from

pruning trees without the Director’s prior written approval and expressly prohibits the

Association from removing any tree without prior written permission from the

Forester. Norman does not direct us to any part of the Contract showing that the

Association had agreed to assume a legal duty to maintain the safety of the trails for

the general public.

       Based on our de novo review of the record, we hold that Norman failed to

establish that the Association owed him a legal duty to protect him from the downed

tree across the trail that the Association did not cause to fall, that may have fallen only

hours—but no later than a day or two—before Norman struck it, and that the
                                            18
Association was not even authorized to unilaterally remove.5 See Felts v. Bluebonnet

Elec. Coop., Inc., 972 S.W.2d 166, 169 (Tex. App.—Austin 1998, no pet.) (rejecting

complainant’s argument that an electrical co-op’s tree-trimming agreement creating a

limited right to trim or clear trees for the purpose of protecting its power lines

“created a broader duty to maintain the area for the protection of the general public

traveling on the nearby county road”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288,

292 (Tex. App.—Waco 1997, writ denied) (holding that “a defendant’s policy to

remedy dangerous conditions he may come across does not impose a legal duty on him

to these third parties” and that a defendant bears “no common law duty to remove

debris . . . that was left by some other party”); see also J.P. Morgan Chase Bank, N.A. v.

Tex. Contract Carpet, Inc., 302 S.W.3d 515, 530–32 (Tex. App.—Austin 2009, no pet.)

(holding a contractual agreement did not create a legal duty to a third party when the

contractual benefit to the third party was not clearly intended by the contract and was

merely incidental to the agreement).

      Therefore, the trial court did not err by granting summary judgment on

Norman’s negligence and gross negligence claims. See Gonzalez v. VATR Constr.,

LLC, 418 S.W.3d 777, 789 (Tex. App.—Dallas 2013, no pet.) (holding that because

      5
          Norman also does not persuade us that we should create a legal duty regarding
the downed tree and trail safety based on public policy considerations. See Kalinchuk,
2016 WL 4376628, at *4. Indeed, public policy considerations weigh heavily against
imposing such a legal duty on what is essentially a group of volunteer mountain bike
enthusiasts who have been granted such limited oversight over the safety of the bike
trails, if any.

                                           19
summary judgment was proper on negligence claim, it was also proper on gross

negligence claim). We overrule Norman’s first issue.

             IV. Norman’s Excluded Summary Judgment Evidence

       Norman’s second issue challenges the trial court’s decision to sustain the

Association’s hearsay objection and strike Matthew Clemons’s report. Norman’s

contention is that because he submitted an affidavit from Clemons in which Clemons

swore that the attached report was a true and correct copy of the report that he had

personally prepared, the report was authenticated, “which overcomes the hearsay

problem.” The Association responds that Norman misunderstands its objection,

which was that the report was inadmissible hearsay, not that it was not properly

authenticated.

A. Standard of Review

       A trial court’s rulings on the admissibility of evidence are reviewable under an

abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338,

347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if

there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court’s discretion in determining

whether an expert is qualified to testify on a matter is broad but not unbounded. In re

Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). A trial court abuses its

discretion by excluding expert testimony if the testimony is relevant to the issues in


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the case and is based on a reliable foundation. Id.; State v. Cent. Expressway Sign Assocs.,

302 S.W.3d 866, 870 (Tex. 2009) (op. on reh’g).

B. Analysis

       Norman attached a short affidavit from Matthew Clemons which stated, in

relevant part, as follows:

       I certify that the ‘Initial Assessment of Tree Conditions; Gateway Park
       Mountain Bike Trail’ was prepared on March 21, 2017 for Jackson Davis
       regarding Norman DeLamar’s bicycle incident, which is attached as an
       Exhibit to Plaintiff’s Response to Fort Worth Biker’s Association
       Traditional and No Evidence Motions for Summary Judgment, is a true
       and correct copy of the report which I personally prepared and provided
       Mr. Davis.

The March 21, 2017 letter was attached to Norman’s summary judgment response as

Exhibit D.

       The Association asserts that Clemons’s affidavit (which was not objected to),

may authenticate the attached report, but it does not remove the report from the

ambit of hearsay. We agree. See Tex. R. Evid. 801, 802; cf. Petty v. Children’s World

Learning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *5 (Tex. App.—Dallas

May 31, 1995, writ denied) (explaining that “[a]uthenticity is separate and apart from

qualification as an exception under the hearsay rule”). Further, the report does not

obviously fall within any of the exclusions from hearsay (Tex. R. Evid. 801(e)) or

exceptions to the rule against hearsay (Tex. R. Evid. 803)—indeed, Norman does not

assert any exclusion or exception.


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      Accordingly, we hold that the court did not abuse its discretion by sustaining

the Association’s hearsay objection to Clemons’s report, and we overrule Norman’s

second issue.

                                     V. Conclusion

      Having held that the trial court did not err by granting summary judgment on

Norman’s negligence and gross negligence claims and that the trial court did not

abuse its discretion by excluding Norman’s expert’s report as inadmissible hearsay, we

affirm the trial court’s judgment.



                                                     /s/ Bonnie Sudderth
                                                     Bonnie Sudderth
                                                     Chief Justice


Delivered: January 24, 2019




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