Affirm in part; Reverse and Remand; Opinion Filed larch 29, 2013.




                                                               In The
                                        Qtmirt uf Ap.ica1
                                fift1i Diitrirt uf  ca at at1zvi
                                                    No. 05-l1-00914-CV


                                        DANIEL J. CALLAHAN, Appellant

                                                                  V.

                             VITESSE AVIATION SERVICES, LLC, AppeHee


                             On Appeal from the 193rd Judicial District Court
                                          Dallas County, Texas
                                   Trial Court Cause No. l0-05389-L


                                                          OPINION
                                 Before Justices Lang-Miers, Myers, and Richter’
                                            Opinion By Justice Myers

        This appeal arises from a premises liability lawsuit brought by appellant Daniel J. Callahan

against appellee Vitesse Aviation Services, LLC. In four issues, Callahan contends the trial court

erred by granting Vitesse’s motion for summary judgment. For the following reasons, we affirm

in part and reverse and remand in part.

                                    BACKGROUND AND PROCEDURAL HisToRY


        Vitesse leased a private terminal at Dallas Love Field Airport from which it operated a

facility for private aircraft. On January 27, 2009, Callahan, an attorney from California, flew in a

private jet to Dallas, Texas. to attend a deposition. The jet landed at Love Field and was stored and


    The Honorable Main E. Richter. retired Justice. sitting by assignment.
refueled at Vitesse’s facility. On the night of January 27. an ice storm hit the Dallas area. On the

atlernoon of January 28. as he was walking to the jet flu the return flight to Calikunia. Callahan

slipped and fell on a patch of ice.

           In April ot 2010, Callahan brought a premises liability lawsuit against Vitesse for injuries

arising out of the slip and fall that occurred at Love Field. On December 10, 2010, Vitesse filed a

motion for summary judgment or, in the alternative, for partial summary judgment. The motion was

based on the premises liability claim alleged in Callahan’s first amended petition, which was hle(l

several months heibre Vitesse’s motion for summary judgment. On April 4, 2011, Callahan tiled

a response to Vitesse’s motion for summary judgment. The response included Callahan’s fifth

amended petition, also filed on April 4, 2011, that added negligence per se claims based on alleged

violations of the Code of Federal Regulations or, alternatively, the Dallas City Code. Callahan also

moved to strike the affidavit of I)avid Peaper—the general manager of Vitesse—that was offered

in support of Vitesse’s motion for summary judgment.
                                                                      •2
           The motion for summary judgment was heard on April 11, 2011 The trial court granted

Callahan’s motion to strike Peaper’s affidavit, ruling it could not be considered as summary

judgment evidence. On April 26, the trial court granted Vitesse’s summary judgment motion and

dismissed Callahan’s causes of action with prejudice. The court’s order does not specifically refer

                     3 Callahan subsequently brought this appeal.
to any of Callahan’s claims.

                                                               DiscussIoN


           Callahan raises four issues in this appeal: (1) the trial court erred by granting summary



   2
      Callahan filed the fifth amended petition seven days before the court ruled on the summary judgment motion. Neither party, however. disputes
that the fifth amended petition was properly before the court.


       The order includes a statement that it is a final appealable judgment”
judgment because the movant, Vitesse, failed to negate the duty element of Callahan’s premises

liability claim in that it provided no evidence Callahan slipped and fill on naturallyoccu1Ting ice

 2)   the trial court cried by applying the natural—ac cumulation rule without considering the “unique

facts ol this case, including that this slip and fall occurred on a secure   airport   tarmac”; (3) the court

erred by granting summary judgment because Vitesse was required by contract and federal aviation

regulations to remove stiow and ice from the tarmac (4) the trial court erred by granting summary

judgment because the summary judgment motion did not address Callahan’s negligence per se

claims.

                                         Standard of Review

          We review de novo the trial court’s summary judgment. /lvJid—Centurv Ins. Co. of Tex. v.

Adc,na/, 243 S.W.3d 618, 621 (Tex. 2007); Beeslev v. Hydrocarbon Separation. Inc., 358 S.W.3d

415. 418 (Tex. App.——Dallas 2012, no pet.). When reviewing a traditional summary judgment

granted in favor of the defendant, we determine whether the defendant conclusively disproved at

least one element of the plaintiff’s claim or conclusively proved every element of an affirmative

defense .Ani. Tobacco Co. r. (Jrinneii. 951 S.W.2d 420. 425 (Tex. 1997). A matter is conclusively

established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence.

Beesley, 358 S.W.3d at 418. The movant must show there is no genuine issue of material fact and

that it is entitled to judgment as a matter of law. TEx. R. Civ. P. 1 66a(c); Sysco Food Servs., Inc.

v. Trapnell, 890 S.W.2d 796. 800 (Tex. 1994). In deciding whether a disputed material fact issue

exists precluding summary judgment, we must take evidence favorable to the non-movant as true,

and we must indulge every reasonable inference and resolve any doubts in favor of the non-movant.

Sysco Food Servs., 890 S.W.2d at 800. When, as in this case, the court’s order granting summary

judgment does not specify the basis for the ruling, we will affirm the summary judgment if any of
the theories presented to the trial court are meritorious. Proiident Li/c & Accident Ins. (‘o. v Knott,

128 S.W.3d 211.216 (Tex. 2003).

                         Objections   to the Summary Jiulginent Evideuice

        We first address Callahan’s contention that, because the only summary judgment evidence

submitted by Vitesse—the affidavit of David Peaper, Vitesse’s general manager—was struck by the

trial court, the court should have denied the motion for summary judgment altogether because

\/itesse failed to meet its burden of proof. Rule 166a(c) of the rules of civil procedure provides that

the summary juclrnent record includes evidence attached either to the motion or the response. Am.

Rd. of Obstetrics & Gynecology, Inc. v. Yoonessi, 286 S.W.3d 624, 627 (Tex. App.—Dallas 2009,

pet. denied). “The proper scope for a trial court’s review of the evidence for a summary judgment

encompasses all evidence on file at the time of the hearing or filed after the hearing and before

judgment with permission ofthc court.” Judwin Props.,     Inc.   i.   Griggs & Harrison, 911 S.W,2d 498.

503 (Tex. App.—Houston [1st Dist,] 1995, no writ); see also Wvthe 11 Corp. v. Stone, 342 S.W.3d

96, 112 (Tex. App.—Beaumont 2011, pet. denied); Am. Bd. of Obstetrics & Gynecology, 286

S.W.3d at 627; S. W Prop. Trust, Inc. v. Dallas Cntv. Flood Control Dist. No. 1, 136 S.W.3d 1,6

(Tex. App.—DalIas 2001, no pet.); Wilson v. Buiford, 904 S.W.2d 628, 629 (Tex. 1995). Although

Vitesse’s summary judgment evidence was struck by the court, the evidence provided in Callahan’s

response to Vitesse’s motion was proper summary judgment evidence on which both parties could

rely, and the trial court could consider this evidence in making its summary judgment ruling. See

Anz. Bd. of Obstetrics & Gynecology, 286 S.W.3d at 627. Having therefore determined what

evidence the court could consider with respect to the motion for summary judgment, we turn our

attention to whether that evidence conclusively established Vitesse’s entitlement to summary

judgment.




                                                  -4-
                                        (‘allah (III ‘s (‘lainis

       (‘at lahan’s first amended petition, which was the pleading on file when Vitesse moved for

summary judgment, alleged the following negligence/premises liability cause of action:

               As a common carrier in Texas, Defendant owed Plaintiff a duty of higher
       care. Defendant should have taken steps or additional steps to clear ice from the
       areas of passenger traffic. Its failure to do SO constitutes negligence that proximately
       caused injury to Plaintiff. The followii list is non—exclusive, but Defendant was
       negligent in the following ways:

                 • Defendant negligently maintained the passenger walking areas.
               2. Defindant negl igentlv failed to remove ice and other hazards,
               rendering the area unsafe for passenger foot traffic.
               3. Defendant failed to properly inspect its premises.
               4. Defendant failed to properly warn passengers utilizing its fixed
               base operation/aircraft terminal.

       After Viesse moved for summary judgment, Callahan amended its pleadings four times.

Callahan’s most recent or iive” pleading, the fifth amended petition, alleged four separate counts.

Count one, titled “Negligence (Premises Liability and 1egligent Activity),” reads as follows:

              I)efendant had obligations to invitee Plaintiff at common law, had obligations
       to him arising from its lease with the City of Dallas, had obligations to him arising
       from the Code of Federal Regulations, and, alternatively, had obligations under the
       Dallas City Code

               Defendant should have warned Plaintiff to take steps or additional steps to
       clear ice from areas of passenger traffic. Its failure to do so constitutes negligence
       that proximately caused injury to Plaintiff. The following list is non-exhaustive, but
       Defendant was negligent in the following ways:

               1. Defendant negligently maintained its tarmac.
               2. Defendant negligently failed to remove ice and other hazards,
               rendering the area unsafe for passenger traffic.
               3. Defendant failed to properly inspect its premises.
               4. Defendant failed to properly warn passengers utilizing its fixed
               base operation/aircraft terminal, including the failure to mark or
               properly mark any so-described designating walkway.

              Defendant also engaged in negligent activity when it backed an aircraft out
       of a hanger in front of Plaintiff and in his walking path immediately as Plaintiff
         exited the building. Detèndant was negligent in backing the plane at the time and in
         the manner that it did, and it was negligent in failing to warn Plaintiff about the
         activity.

         Vitesse’s lease agl-eement with the City of Dallas. which is alluded to in count one. provided

that Vitesse agreed to “maintain in good repair and in a clean and orderly condition any common

areas, taxiwavs. ramps, public aprons, public access areas, runways and other public areas of the

airport essential to Lessee’s operations that conform with Lessor’s Department of Aviation and

applicable Federal Aviation Administration (FAA) construction specifications.” The lease required

Vitesse to “take all precautions reasonably necessary to promote the safety of its passengers.

customers, business visitors and other persons, and employ such means as may be necessary to direct

the movement of vehicular traffic in such areas, including, but not limited to, any associated

pavement markings that may be necessary.”

         The three remaining counts of Callahan’s fifth amended petition alleged negligence per se

claims based on provisions of the Code of Federal Regulations and the Dallas City Code, His second

count asserted negligence per se based on 49 C.F.R.        §‘   1542.20 1 and 1542.2 13 for failing to

maintain security on the airport tarmac and to train security personnel, and allowing passengers

unescorted access to a secure area within Dallas’ Love Field airport. As alleged in the petition, 49

C.F.R.   § 1542.201, titled “Security of the Secured Area,” reads as follows:
         (a) Each airport operator required to have a security program under     § 1542.103(a)
         must establish at least one secured area.

         (b) Each airport operator required to establish a secured area must prevent and detect
         the unauthorized entry, presence, and movement of individuals and ground vehicles
         into and within the secured area by doing the following:

                 (1) Establish and carry out measures for controlling entry to secured
                 areas of the airport in accordance with § 1542.207.
                 (2) Provide for detection of, and response to, each unauthorized
                 presence or movement in, or attempted entry to, the secured area by




                                                  —6--
                an individual whose access is not authorized in accordance with its
                security program.
                (3) Establish and carry out a personnel identification system described
                under 1542.211.
                (4) Subject each individual to employment history verification as
                described in 1542.209 before authorizing unescorted access to a
                secured area.
                (5) Train each individual before granting unescorted access to the
                secured area, as required in § I 542.213(b).
                (6) Post signs at secured area access points and on the perimeter that
                provide warning of the prohibition against unauthorized entry. Signs
                must be posted by each airport operator in accordance with its
                security program not later than November 14, 2003.

49 C.F.R.   § 1542.201. Section 1542.213(b) of title 49, titled “Training,” provides that “[ajn airport
operator may not authorize any individual unescorted access to the secured area or SIDA [secured

identification display area], except as provided in   § 1542.5, unless that individual has successfully
completed training in accordance with TSA-approved curriculum specified in the security program.”

49 C.F.R.   § 1542.213(b).
       Callahan’s third count alleged negligence per se pursuant to 14 C.F.R.         § 139.3 13, titled
“Snow and ice Control,” which, as alleged, reads as follows:

       (a) As determined by the Administrator, each certificate holder whose airport is
       located where snow and icing conditions occur must prepare, maintain, and carry out
       a snow and ice control plan in a manner authorized by the Administrator.

       (b) The snow and ice control plan required by this section must include, at a
       minimum, instructions and procedures for—

                (1) Prompt removal or control, as completely as practical, of snow,
                ice, and slush on each movement area;
                (2) Positioning snow off the movement area surfaces so all air carrier
                aircraft propellers, engine pods, rotors, and wing tips will clear any
                snowdrifi and snowbank as the aircraft’s landing gear traverses any
                portion of the movement area;
                (3) Selection and application of authorized materials for snow and ice
                control to ensure that they adhere to snow and ice sufficiently to
                minimize engine ingestion;
                (4) Timely commencement of snow and ice control operations; and




                                                  —7—
                        ‘) Prompt notitlcation, ill accordance \vith      139.339. of all air
                       carriers rising the airport when any portion of the movement area
                       normally available to them is less than satisfactorily cleared fir safe
                       operatIon 1w their aircraft.

           (c) FAA Advisory Circulars contain methods and procedures for snow and ice control
           equipment, materials, and removal that are acceptable to the Administrator.

l4C.F.R. 139.313.

           Count four pleaded a violation of section 43-96 of the Dallas City Code, titled “Removal of

Snow and Ice From Sidewalks Required.” As alleged in the petition, it reads as follows:

           (a) Every owner, lessee, tenant. occupant or other person having charge of any
           building or lot abutting upon any public way or public place shall remove the snow
           and ice from the sidewalk in front of the building or lot.

           (b) Snow and ice which falls or accumulates before 4:00 p.m. during any day, except
           Sunday, shall be removed within three hours after the snow or ice has fallen or
           accumulated, Snow and ice which falls or accumulates on a Sunday or after 4:00p.m.
           and during the night on any other day shall be removed before 10:00 am. the
           following day. (Ord. Nos. 33 l4 1939$)

DALLAS CITY CoDE               § 43-96.
           Vitesse moved for summary judgment based only on the negligence/premises liability claim

raised in Callahan’s first amended petition, which was the pleading on file at the time Vitesse moved

for summary judgment.                   That claim alleged Vitesse was negligent in maintaining passenger

walkways, in failing to remove ice and other hazards, in failing to properly inspect its premises, and

in failing to properly warn passengers utilizing its “fixed base operation/aircraft terminal.” The

summary judgment motion argued that, as a matter of law, Callahan could not recover on this claim

because naturally occurring ice is not an unreasonably dangerous condition.
                                                                 4 The motion, however,

did not address the other claims in Count 1 of the fifth amended petition that Vitesse was negligent


     me motion contained only two grounds: (a) ‘Vitesse is entitled to summary judgment because, as a matter of law, naturally-occurring ice is
not an unreasonably dangerous condition”; and (b) in the alternative, Vitessc is entitled to partial summary judgment that it did not owe Callahan
the heightened standard olcarc that a common carrier owes to its passengers.’




                                                                      —8--
when it backed an aircraft out of a hanger in front of Callahan and in his walking path immediately

as he exited the building, that Vitesse was negligent in failing to warn him about that activity, and

that Vitesse owed Callahan further obligations under the lease agreement with the City of Dallas, the

Code of Federal Regulations, and the Dallas City Code. The motion also did not address the claims

in Count 2 of the fifth amended petition that Vitesse was negligent because it violated 49 CFR      §
1542.201(5) and 49 C.F.R.    § 1542.213(b) by failing to train personnel before allowing Callahan
unescorted access to a secure area, nor did the motion address the negligence per se claims in Count

3 and Count 4 alleging Vitesse failed to comply with additional obligations owed to Callahan under

the Code of Federal Regulations and the Dallas City Code. Vitesse did not amend or supplement

its summary judgment motion to address any of these additional claims. The trial court granted

summary judgment as to all of Callahan’s causes of action.

       Summaryjudgment may only be granted based on grounds expressly asserted in the summary

judgment motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). Generally, a

movant who does not amend or supplement its pending motion for summary judgment to address

newly added claims alleged in a subsequent petition is not entitled to summary judgment on those

claims. Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam); Wilson v.

Davis, 305 S.W,3d 57, 73 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Blancett v. Lagniappe

Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In such a case,

the portion of the summary judgment purporting to be final must generally be reversed because the

judgment grants more relief than requested in the motion. See Wilson, 305 S.W.3d at 73; Blancet4

177 S.W.3d at 592. Limited exceptions apply to this rule: an amended or supplemental motion for

summary judgment is not required when the amended petition essentially reiterates previously

pleaded causes of action, when a ground asserted in a motion for summary judgment conclusively




                                                —9—
negates a common element of the newly and previously pleaded claims, or when the original motion

is broad enough to encompass the newly asserted claims. Wilson, 305 S,W.3d at 73 n,13; CoterilL

Jenkins v. Texas Med. Ass    ‘ii   Health care Liability Claim Trust, 383 S.W,3d 581, 592 (Tex,

App.—Houston [14th Dist.] 2012, pet. denied); Rotating Servs. indus., inc. v, Harris, 245 S.W.3d

476, 487 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).

       Vitesse does not dispute that its motion for summary judgment did not address Callahan’s

later-pleaded claims. But Vitesse argues it was nonetheless entitled to summary judgment as to all

of Callahan’s claims because it conclusively negated the common element of duty, which is a

required element of any negligence claim. By negating that element, Vitesse believes it showed

Callahan could not recover on any part of the negligence/premises liability claim or any of the other

later-pleaded causes of action. In order to address this argument, we therefore examine Callahan’s

negligence/premises liability causes of action.



               Removing or clearing Away Ice From Areas of Passenger Traffic

       In his first three issues, Callahan argues the trial court erred by granting summary judgment

because Vitesse did not establish Callahan slipped and fell on “naturally occurring” ice, the trial

court erred by applying the so-called “natural-accumulation” rule, and that Vitesse was required by

its contract with the City of Dallas and by federal aviation regulations
                                                             5 to remove snow and ice from

the airport tarmac. To the extent all three of these issues involve an alleged failure to remove or

clear away ice from areas of passenger traffic, we address them together.

       Premises liability is a special form of negligence in which the duty owed to the plaintiff




   See14C.FR. 139313
   5




                                                  10—
depends on the plaintiff’s status on the premises at the time of the incident, Scott & White AIem 1

Hosp. v.       mu’, 310 S.W.3d 411,412 (Tex. 2010):   W   lnvs.,   Inc. v. (irena, 162 S.W.3d 547, 550 (Tex.

2005). The plaintiff is usually classified as either an invitee, licensee, or trespasser. Mellon Mortg.

Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999). “An invitee is ‘one who enters on another’s land

with the owner’s knowledge and for the mutual benefit of both.” American Induc. Li/u Ins. Co. v.

Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (quoting Rosas

v. Buddie ‘s Food Store, 518 S.W.2d 534. 536 (Tex. 1975)); see also RESTATEMENT (SEcoND) OF

TORTS     § 332 (1965). Neither party disputes that, at the time he fell, Callahan was a business invitee.
          Premises owners and operators owe a duty to keep their premises safe for invitees against

conditions on the property that pose unreasonable risks of harm. Brinson Ford, Inc. v. Alger, 228

S.W.3d 161, 162 (Tex. 2007); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,936 (Tex. 1998).

This duty, however, does not render the premises owner or operator an insurer of the invitee’s safety.

See,   e.g.,   Gonzalez, 968 S.W.2d at 936. To prevail as the invitee plaintiff in a slip-and-fall case,

Callahan had to prove (1) actual or constructive knowledge of some condition on the premises by

the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did

not exercise reasonable care to reduce or eliminate the risk; and 4) the owner/operator’s failure to

use such care proximately caused the plaintiffs injuries. Gonzalez, 968 S.W.2d at 936 (Tex. 1998)

(citing Keetch v. Kroger C’o., 845 S.W.2d 262,264 (Tex. 1992)). Because he was a business invitee,

Callahan had to show the ice upon which he fell was an unreasonably dangerous condition. If there

was no unreasonably dangerous condition, then, as a matter of law, Vitesse owed Callahan no duty,

and he could not recover on his premises liability claim. See Fair, 310 S.W.3d at 412-13.

          “[Njaturally occurring ice that accumulates without the assistance or involvement of

unnatural contact is not an unreasonably dangerous condition sufficient to support a premises




                                                   1 1—
liability claim” Fair. 3 10 S.W.3d at 414: see a/so 41.0. Dental Lab v. Rape, 139 S.W.3d 671, 676

 [‘cx. 2003) (per curiam). A natural accumulation of ice is one that accumulates as a result ofan act

of nature. and an unnatural accumulation re1i.rs to causes and factors other than inclement weather

conditions--- -to causes other than the meteorological forces of nature. Due, 3 1 () S.W.Sd at 41 5.

Salting, shoveling, or applying a chemical deicer to a natural ice accumulation does not transform

it into an unnatural one. Id. at 419. “To hnd otherwise would punish business owners who, as a

courtesy to invitees, attempt to make their premises safe.” Id. Furthermore, ice that melts and later

refreezes is still deemed a natural accumulation. Id. at 418.

        The summary judgment evidence in this case shows that, shortly before January 28, 2009,

the day of the accident, an ice storm hit the Dallas area. An e-mail message from Linton Gray, a line

service operator with Vitesse, described the weather condition on the day in question as “icy” and

noted “the ramp had started to thaw with the help of ice pellets.” Gray’s e-mail also stated that “the

passenger walked onto the ramp. slipped and fell on what appeared to be a puddle of water,” but it

turned out to he a “thin sheet of ice.” An e-mail from another line service operator, Bryan Mason,

read in part:

                On January 28, 2009, at approximately 2 p.m., we had an aircraft staged for
        departure. It had rained the night before so the ramp was a little icy, As I walked on
        the ramp I passed one of our guest[s], said hello, then promptly slipped on a small
        piece of ice but was able to catch myself from falling. At that moment I heard the
        guest laughing at me. I went to find cones, markers and salt for the ramp, on my way
        back with the salt I witnessed the same guest falling to the ground in the exact same
        spot he had previously seen me fall.

He also noted that “the entire ramp was not icy, only small sections.” In his deposition, Callahan

described the weather that day as “kind of cold and gloomy.”

        Callahan did not present any controverting summary judgment evidence that the ice resulted

from something other than the winter storm. He suggests the ice was not naturally occurring because




                                                —12—
it had been “shaped, altered, and modified by human beings” through the use of “additional deicing”

and the application of salt and “solid ice pellets.” He also argues the natural accumulation rule

does not apply because he did not fall under “normal circumstances.” In support of this contention,

he cites the Texas Supreme Court’s statement in Pt/I. 0. Dental Lab. v. Rape that “[ojrdinary mud that

accumulates naturally on an outdoor concrete slab without the assistance or involvement ofunnatural

contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, not a

condition posing an unreasonable risk of harm.” See A/LU. Dental, 139 SW3d at 676 (emphasis

added).

          These contentions are unpersuasive. First, although we have found no decisions construing

the phrase “normal circumstances,” the language used by the Texas Supreme Court in its subsequent

decision, Fair, leaves little room for doubt as to the outcome here:

          Ice in Texas may occur less frequently than mud, but frequency is only one of many
          factors relevant to our analysis. And, the relative irregularity of icy conditions in this
          state may weigh against imposing liability. Requiring premises owners to guard
          against wintery conditions would inflict a heavy burden because of the limited
          resources landowners likely have on hand to combat occasional ice accumulations
          Because we find no reason to distinguish between the mud in MU. Dental and the
          ice in this case, we hold that naturally occurring ice that accumulates without the
          assistance or involvement of unnatural contact is not an unreasonably dangerous
          condition sufficient to support a premises liability claim.

Fair, 310 S.W.3d at 414 (citations omitted). We also note that a comparison of Fair to the summary

judgment evidence in this case does not suggest Callahan did not fall under “normal circumstances.”

In Fair, the summary judgment evidence showed that an ice storm hit the Temple area causing ice

to accumulate on the defendant’s grounds, including the road where the plaintiff fell, and nothing

indicated that the ice resulted from something other than the winter storm. Id. at 415.

          The summaryjudgment evidence in this case likewise established that the ice in question was

a naturally occurring accumulation that did not pose an unreasonable risk of harm. The burden then




                                                   —1 3
shifted to ( allahan to provide summary judgment evidence that the ice did not accumulate naturally.

lie did not do so   l’urthermore, as \
                                     itesse points out in its briet Callahan had been in the city
                                     7

overnight, traveled throughout the city that day, and walked from his car into Vitesse’s building only

twenty minutes belore exiting the building to walk to the waiting jet. In addition, Callahan did not

recall seeing any propellers or hearing jet engines when he was on the tarmac, and his fall occurred

just outside ol Vitesse’s building——-three or four steps away, according to Callahan’s deposition.

And Callahan’s complaints regarding the use of salt, ice pellets, or a chemical deicer were also

addressed in Pu/i, where the court concluded that salting. shoveling, applying chemical deieer, or

allowing thawed ice to refreeze, does not turn a natural accumulation of ice into an unnatural one.

Pair, 310 S.W.3d at 4 18-19. Based on Pair, we conclude the ice in this case accumulated naturally

and did not, as a matter of law, pose an unreasonable risk of harm.

       Callahan, however, tries to tit this case within two exceptions discussed in Fair. The first

is “that a premises owner should he liable when it has ‘actual or implied notice that a natural

accumulation of ice or snow on his property created a condition substantially more dangerous than

a business invitee should have anticipated by reason of knowledge of the conditions generally

prevailing in the area.” Id. at 416 (quoting Cooper v. Valvoline Instant Oil C’hange, No. O7AP-392,

2007 WL 3257245, at *5 (Ohio 10th Dist. Ct. App. Nov. 6, 2007)). The Texas Supreme Court

explained “that this exception applies only in situations where the ice or snow conceals a defect or

hazard that an invitee should not anticipate from his general knowledge of wintery conditions in the

area.” Id. “For instance, the exception would arise when accumulated snow or ice covers a normally

open and obvious danger, such as a deep hole in a parking lot or an eight-inch raised concrete

bunker.” Id. But when the complained-of condition “is the slipperiness of the ice itself,” that

condition does not rise to the level of “unreasonably dangerous” because it is one that is “normally




                                               —14--
associated with iceS” See id, at 41 7. The same is true in the present case. As in Fair, the ice that

Callahan slipped on did not conceal any defect—it is the alleged defect.

           The second exception is “that the natural accumulation rule does not apply when a landowner

is ‘actively negligent in permitting or creating an unnatural accumulation of ice or snow.” Id. at 416

(quoting Cooper, 2007 WL 3257245, at *56) Callahan contends Vitesse was “actively negligent”

in using ice pellets and in attempting to make the airport ramp safer. Callahan argues that rather than

making the ramp safer this “made it worse” because the ice pellets caused the ice to partially thaw,

after which it refroze, and “what was ice now appeared to be water” But as we discussed earlier,

salting, shoveling, or applying a chemical deicer to a natural ice accumulation does not transform

it into an unnatural one, and ice that melts and later refreezes is still deemed a natural accumulation.

See id. at 418-19. In Fair, the court noted that to “find otherwise would punish business owners

who, as a courtesy to invitees, attempt to make their premises safe.” Id. at 419. Based on the Texas

Supreme Court’s guidance in Fair, we see no evidence in this case that Vitesse’s actions made the

ice accumulation unnatural. As a result, this second exception does not apply. See id.

           Callahan’s brief also cites six additional exceptions from various jurisdictions that have

adopted a similar rule regarding naturally occurring ice. The exceptions were briefly discussed in

a lengthy footnote in Fair that cited cases from several states. Id. at 416 n.6.
                                                                            6 But the court


   6
       They are as follows:

               [Piroperty owners and business operators may be liable for injuries resulting from an accumulation of ice, water, or snow
           if a plaintiff establishes that the means of ingress or egress was unsafe for any reason other than a natural accumulation of ice,
           water, or snow.

           2. [A] contract to remove snow creates a duty to remove even natural accumulations of snow.

           3. [A] voluntary undertaking to remove snow and icc may subject the landowner to liability if the removal is performed
           negligently.

           4. An exception exists ‘when the owner undertakes protective measures that heighten or conceal the nature of the naturally
           occurring condition, thus making it worse.’

           5. A landlord or an invitor ‘may become obligated either by agreement or a course of conduct over a period of time to remove




                                                                       -   1 5—
expressed no opmion on their viability under Texas law, See id, No other Texas cases of which we

are aware have even considered, much less adopted any of these additional exceptions, and Callahan

cites no supporting authority apart from the Fair footnote. We thus decline his invitation to apply

further exceptions to the general rule regarding naturally occurring ice.

            Additionally, Callahan’s reply brief discusses at length the case of Wang v. Tenet Hospitals,

Ltd., 181 S.W.3d 532 (Tex. App.—El Paso, 2005, no pet.), which noted:

            The determination of whether a particular condition poses an unreasonable risk of
            harm is generally flict specific. In general, reasonableness determinations are highly
            fact intensive and involve issues well suited for a jury. There is no definitive,
            objective test that may be applied to determine whether a specific condition presents
            an unreasonable risk of harm.

Id. at 539. Callahan relies on this language to suggest there is a triable issue of fact regarding

whether “the conditions on this icy and slippery ramp posed an unreasonable risk of harm.” But the

court’s analysis in Wong was actually focused on deciding whether the shrub on which the plaintiff

tripped was (or was not) a natural condition:

            In the case before us, the distressed shrub was not in its natural state as was asserted
            about the condition of the mud in MO. Dental Lab. See id. In MO. DentalLab, the
            mud was naturally accumulating, whereas in this case, Tenet Hospitals specifically
            planted the shrubs as part of their landscaping scheme. There was no evidence
            regarding the reason the bush was in a distressed state. In that regard, we do not agree
            with Tenet Hospitals’ assertion that the demise of the plant was nothing more than
            a natural condition. The analogy Tenet Hospitals attempts to make that the shrub in
            this case is the same as the mud on the “man-made concrete slab” fails.

lii. at 538-39. The court, in other words, rejected the hospital’s analogy that a landscaped shrub was

just as “natural” of a condition as the mud that accumulated on the slab after the rain storm in MO.



            snow and ice from common areas, thereby assuming a duty to exercise ordinary care to remove the snow and ice to make the
            common area reasonably safe.’

            6. An exception arises when ‘it [isi shown that although the landlord did not expressly agree to perform the duty of removal.
            he obligated himself to do so by his course of conduct over a period of time.’

Id. (citations omitted).




                                                                      —1 6-
I)ental Lab. v. Rape. See id. The Wang court nonetheless concluded that the shrub was not an

unreasonably dangerous condition for which Tenet Hospitals could be held liable, and affirmed the

no-evidence summary judgment in the hospital’s favor. Id. at 539-40. Wong, therefore, does not

alter our analysis in the present case——or our conclusion that the naturally occurring ice was not an

unreasonably dangerous condition. See Pair, 310 S.W.3d at 414.

          Notwithstanding the settled Texas authority regarding naturally occurring ice, Callahan points

out in his brief that the so-called “natural accumulation” rule, also known as the “Massachusetts”

7 has been rejected in Massachusetts and otherjurisdictions. See, e.g. Papadopolous v. Target
rule,

Coip.,   457 Mass. 368, 930 N.E.2d 142, 143 (Mass. 20i0) (“We now abolish the distinction between

natural and unnatural accumulations of snow and ice, and apply to all hazards arising from snow and

ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding

all other hazards”). Even so, however, the law in Texas remains that a natural accumulation of ice

is not unreasonably dangerous for purposes of premises liability, and we are not free to abrogate or

modify established precedent. See Lubbock Co. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580,

585 (Tex. 2002).

          The only remaining question is whether Vitesse’s motion for summary judgment was broad

enough to reach all of the negligence allegations contained in count one of Callahan’s fifth amended

petition, which both parties agree was properly before the court. We conclude the trial court did not

err by granting summary judgment as to the negligence allegations in count one that Vitesse (1)

negligently maintained its tarmac, (2) negligently failed to remove ice and other hazards, (3) failed

to properly inspect its premises; and (4) failed to properly warn passengers utilizing its “fixed base



    See, e.g., Griflhn v, 1438, Lid.. No. 02-03-255CV, 2004 WL 1595787, at *3 (Tex. App--Ft. Woh July 14,2004, no pet.) (mem. op.) (citing
Woods v Naunikeag Steam cotton Co.. 134 8 ass. 357 (1883))




                                                                 —17—
operation/aircraft terminal.” All of these allegations—virtually identical to claims asserted in the

fint amended pctition••---are precluded by the general rule that naturally occurring ice does not, as a

matter of law, constitute an unreasonably dangerous condition, which was the basis for Vitesse’s

motion for summary judgment. As the Texas Supreme Court made clear in Fair. there is no claim

for failing to remove or clear away ice from areas ofpassenger traffic under the circumstances ofthis

case because the ice accumulated naturally and, thus, did not pose an unreasonable risk ofharm. See

Fair, 310 S.W.3d at 4J48

           But the motion for summaryjudgment did not address the other claims asserted in count one

of the fifth amended petition that Vitesse was negligent when it backed an aircraft out of a hanger

in front ofCallahan and in his walking path immediately as he exited the building, that Vitesse was

negligent in failing to warn him about that activity, and that Vitesse owed Callahan additional

obligations under the lease agreement with the City ofDallas, the Cede of Federal Regulations, and

the Dallas City Code. Based on our reading of the motion for summary judgment, Callahan’s

pleadings, and the decision in Fair, we conclude the motion was simply not broad enough to reach

these later-pleaded claims because they are not, as pleaded, based on a common law claim ofalleged

failure to remove or clear away ice from areas of passenger traffic. And as we noted earlier,

unaddressed issues or claims cannot be a basis for summary judgment. See, e.g., Cheasher, 658

S.W.2d at 564. Accordingly, we overrule the firat, second, and third issues in part, and sustain them

in part.

                                                   Negligence Per Se Clthns




   Vnease’sniiotion forsurnmarjjudgment did not act’aIly cite Fair. relying instead on thecourt’s previousdecision inM.OL Denraltab. v. Rqpe.
   8
139 S.W.3d at 676. But in a supplemental authotity Shod ten days after the motion for sununmyjudgment vitesse cited Fair. 310 S.W.3d at 415.
and stated, 9liis year. the Texas Supreme Cowl extended its holding inM.a Dental to hold that natwaflyaccuinulating ice is not an unreasonably
dangerous condition as a mattcr of law.”




                                                                   -18-
          In his lourth issue, Callahan contends the trial court erred by granting summary judgment

because the motion br summary judgment (lid not address Callahan’s negligence per se claims. \\‘c

azree.

         itesse argues
         8
         \                     it   was entitled to summary judgment as to a/I of’ Callahan’s claims, despite

the I ict th   it it   motion tot summ irs Ju(lgnlcnt iddtcssed onls the n     ligcnce’premic Ii hilit ci tim

asserted in Callahan’s first amended petition, because (1) the motion for summary judgment

specifically challenged the common element olduty, which is a required element of any negligence

claim; and (2) negligence per se is not a separate cause of action that exists independently of a

commonlaw negligence claim—-— it is just one method of proving a breach of duty. See Williams r.

Sable, No, 14-09-00806-CV. 2011 WL 23828$. at *3 (Tex. App.—llouston [14 Dist.] Jan.25, 2011,

no pet.) (mem. op.) (citing Thomas v.             Uoka,      290 S.W.3d 437. 445 (Tex. App.—Houston [14th

Dist. j 2009. pet. denied)); see also Zavala          i’.   Trujillo, $83 S.W.2d 242, 246 (Tex. App.—El Paso

1994, writ denied).

         Negligence per se is a common law tort concept in which a duty is based on a standard of

conduct created by a statute rather than on the reasonably prudent person test used in “pure”

negligence claims. See Smith v. vIerritt, 940 S.W.2d 602,607 (Tex. 1997). As more fully explained

by the Texas Supreme Court, “[n]egligence per se is a tort concept whereby a legislatively imposed

standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent

person,” and “[i]n such a case the jury is not asked to judge whether or not the defendant acted as

a reasonably prudent person would have acted under the same or similar circumstances” because “the

statute itself states what a reasonably prudent person would have (lone.” Carter v. William

Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). In a negligence per se action, “the

trial court merely has the fact finder decide if the tortfeasor committed the act proscribed by the




                                                             19—
statute and if the act proximately caused injury” Borden, Inc. v. Price, 939 S,W.2d 247, 250 (Tex.

App—Amari Ho 1997, writ denied).

          The Fair decision was based on a duty imposed by common law, and the common law, as

determined by Fair, does not allow a claim for failing to remove or clear away ice from areas of

passenger traffic under these circumstances. See Fair, 310 S.W.3d at 414. But while Callahan’s

negligence per se claims broadly related to a failure to remove or clear away ice, they are based on

asserted violations of specific federal and local airport safety regulations. See 49 C.F.R.                             § 1542.201
(explaining that airports are required to “prevent and detect the unauthorized entry, presence, and

movement of individuals” from an airport’s secured areas): 14 C.F.R.                            § 139.313 (requiring airports
located where snow and icing conditions occur to “prepare, maintain, and carry out a snow and ice

control plan”); DALLAS CITY CoDE § 43-96 (requiring building owners, lessees or tenants to “remove

the snow and ice from the sidewalk in front of the building or lot.”). As alleged by Callahan, these

regulations purport to create different duties than the common law. Vitesse’s summary judgment

motion, however, was based on the common law duty discussed in Fair, Because it did not address

or even contemplate any purported statutory obligations, we cannot say the motion was broad enough

to reach the later-pleaded negligence per se claims.
                                             9

          In reaching this conclusion, we distinguish the case of Lampasas v. Spring Center, inc.,

which Vitesse cites in its reply brief, in Lampasas v. Spring Center, Inc., an amended petition filed

after the summary judgment motion asserted new variations (also pleaded as negligence) of the

original petition’s negligence claim. 988 S.W.2d 428,435 (Tex. App.—Houston [14th Dist.] 1999,

no pet.). The rule 166a(i) motion had alleged there was no evidence of duty, breach, or causation to



      Although we conclude Vitesse’s summary judgment motion was not broad enough to reach the laterpleaded claims, we express no opimon
regarding their viability under municipal, state, or federal law.




                                                                —20—
support the onunal neglwence clami ---elements that were common to any negligence claim pleaded

in   any petition         and the nonmovant produced no evidence ot these elements. Id. at 4$o—37. Hence,

summary judgment was proper on all of the plaintilfs claims. Id. at 437. The present case differs

from Lampasus. where the court concluded that all of the plaintiff’s negligence claims shared

common        elements that were addressed by the motion for summary judgment. Other analogous cases

on which Vitesse relies are likewise distinguishable because, in each of them, the summary judgment

motion attacked an element that was common to all ot’the plaintift s claims.                                      °
                                                                                                                      We sustain Callahan’s

thurth issue.

                                                                  Conclusion

            Accordingly, we affirm the trial court’s judgment in part; reverse and remand it in part.

            We affirm the trial court’s summary judgment as to the negligence/premises liability

allegations in count one of Callahan’s fifth amended petition that Vitesse (I) negligently maintained

its tarmac; (2) negligently failed to remove ice and other hazards: (3) failed to properly inspect its

premises: and (4) failed to properly warn passengers utilizing its “fixed base operation/aircraft

terminal

           But we reverse the court’s summary judgment as to Callahan’s claims (1) that Vitesse was

negligent when it backed an aircraft out of a hanger in front of Callahan and in his walking path


          in ,Iudwiii Propei’rie’.c. 1w. r. Griggc & Harrison, for example, a law firm stied a client to recover for seices rendered. 911 S.W.2d 500
lEes. Appr 1-iouston 1st Dist.1 1995 no writ), in response, the client asserted a counterclaim based on the firm’s alleged disclosure of confidential
and privileged tnfomtation through the statement of services that had been attached to the fino’s petition. Id. The firm filed a tradittonal summary
judgment motton. asserting it conclusively negated the element of damages fir each of the client’s causes of action. Id. at 501. Before the summary
judgment heartng. the client amended its counterclatm. alleging the satne tiicts that supported his original counterclaim but adding that the firm’s
conduct cunsttuted a breach of contract. breach of implied warranty, breach of fiduciary duty, negligence. attd gross negligence. Id The trial court
granted the firm’s sutamarv udgment motion. Id. Ott appeal. the client argued the court improperly granted the firm’s motion because his
counterclaims for breach of implied warranty, breach of fiduciary duty. and negligence were not addressed in the firm’s motion. Id. But the appellate
court affitined the sutnmary judgment on the additional claims, holding that, because the client’s factual allegations of damages made in the original
counterclaim were. “on their face, couched in tort, contract, and breach of fiduciary duty.” the firm’s sumtnary judgment motioti contemplated the
claims eventually specified in the client’s amended counterclaim. id. at 503. In Williams u. Sable, 2011 WL 238288, the plaintiff sued for
negligence, negligence per Se, and gross negligence, and the negligence per se claim was based on an alleged violation of a Houston city ordinance.
See id. at * 1. The court noted that each ofthese claims included the element of proximate cause, and that by conclusively negating the foreseeability
component of proximate cause, the movant showed he was entitled to summary judgment as to each of the plaintiff’s claims. Id. at *4,5




                                                                       —2 1—
immediately as he exited the htulchni:     (2)   that   \‘ itesse   was   negligent in Eu hug   to warn Callahan

about that activity: (3) that V itesse owed Callahan additional obligations under the lease agreement

with the City of Dallas, the Code of Federal Regulations, and the Dallas Cil.y Code: and (4) the

negligence per se claims asserted in counts two, three, and           four of’ the   fifth amended petition. We

remand these claims to the trial court   for   further proceedings




                                                   -




                                                   LANA MYERS
                                                   J LJSTIC E

1 109 14F.P05
                                            ©
                                     Qitnirl nf Apprah
                         .Fif11i iitrirt uf cxa at 1a11zu

                                         JUDGMENT
DANIEL J. CALLAI-IAN. Appellant                        Appeal from the 193rd Judicial [)istrict
                                                       (ourt of Dallas County, Texas. (Tr.Ct.No.
No. 05-1 l-00914-(’V           V.                      l0-05389-L).
                                                       Opinion delivered by Justice Myers, Justices
VITESSE AVIATION SERVICES, LLC,                        Lang-Miers and Richter participating.
Appellee

         In accordance with this Court’s opinion ot this date, the judgment of the trial court is
FFIRMEI) IN PARI md REVERSED IN PARI
         We REVERSE the portion of the trial court’s judgment as to appellant DANIEL J.
CALLIIAN’S claims that appellee VITESSE AVIATION SERVICES, LLC (I) was negligent
when it backed an aircraft out of a hanger in front of Callahan and in his walking path immediately
as he exited the building: (2) was negligent in failing to warn Callahan about that activity; (3) that
Vitesse owed Callahan additional obligations under the lease agreement with the City of Dallas, the
Code of Federal Regulations, and the Dallas City (ode: and (4) the negligence per se claims asserted
in counts two, three, and four of Callahan’s fifth amended petition. We REMAND these claims to
the trial court for further proceedings. We AFFIRM the trial court’s judgment in all other respects.
It is ORDERED that each party bear its own costs on appeal.


Judgment entered March 29, 2013.




                                                       LANA MYERS
                                                       JUSTICE
