                                 NO. 07-02-0485-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                               DECEMBER 12, 2003
                         ______________________________

                                    GEMA PUGA,

                                                            Appellant

                                           v.

                               VICTOR CHAVEZ, M.D.,

                                                     Appellee
                       _________________________________

            FROM THE 99th DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-513,370; HON. MACKEY HANCOCK, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.


      Gema Puga (Puga) appeals from a final summary judgment entered in favor of

Victor Chavez, M.D. (Chavez). Two issues are presented for review. The first concerns

the purported failure of Chavez to address Puga’s cause of action for simple negligence

in his motion for summary judgment. The second issue implicates Puga’s claim sounding

in premises liability. She contends that material issues of fact exist regarding whether
Chavez controlled the area in question and whether ice in a parking lot creates an

unreasonable risk of harm. We affirm the judgment.


                                                Background


        Puga, an employee of Chavez, slipped on a patch of ice while leaving work for

lunch. The ice formed after a heavy snow fall several days earlier and was located near

her car in a parking lot adjacent to Chavez’ office and property. Though it is undisputed

that Chavez did not own that portion of the lot where Puga fell, she nonetheless contended

that he exercised control over it and, therefore, was responsible for ameliorating dangerous

conditions existing on it. The presence of ice was one such condition, according to Puga.

Similarly undisputed is that both Puga and Chavez knew that ice was present in the lot.


        Puga sued Chavez and the owner of the lot and asserted two causes of action

against her employer.1 One involved Chavez’ purported negligence in failing to provide her

a safe place to work. The other sounded in premises liability; that is, Puga contended that

Chavez breached the duty of care owed his invitees, such as Puga, by failing to warn of

and remove the ice. Chavez answered the petition and subsequently filed a motion for

summary judgment. Through the latter, he argued that 1) Puga “was not acting within the

course and scope of her employment when the accident occurred, nor . . . in furtherance

of any employment related purpose” since “she was merely going to lunch at noon,” 2)

Chavez did not control or possess that portion of the lot where Puga fell, 3) the condition



        1
          The lot own er ap pare ntly settled with Puga and is not a party to this app eal. T hus , we lim it our
discuss ion of the caus es to those as serted against Chavez.

                                                       2
did not pose an unreasonable risk of harm, 4) Puga’s injuries were not proximately caused

by Chavez, 5) no evidence exists regarding any element of Puga’s premises liability claim,

and 6) no evidence exists to support the award of exemplary damages.


       The trial court granted the motion of Chavez. In doing so, it did not specify any

particular ground upon which it relied.


                                  Standard of Review


       The standard applicable to reviewing the entry of traditional and no-evidence

summary judgments is well-settled and need not be reiterated. Instead, we cite the parties

to Kimber v. Sideris, 8 S.W.3d 672, 675 (Tex. App.--Amarillo 1999, no pet.) for their

explanation.


                Issue One — Simple Negligence Claim Unaddressed


       Puga initially argues that Chavez’ motion for summary judgment failed to address

both causes of action alleged in her live pleading. Again, those causes involved simple

negligence and a premises claim. According to Puga, the motion addressed only her

cause of action sounding in premises liability. And, because the other went unmentioned,

the trial court could not have considered or rejected it via the summary judgment. We

overrule the issue for several reasons.


       First, we entertained the appellate contentions of Puga at oral argument. During

that argument, her counsel stated that he and his client no longer wished to contend that



                                            3
the summary judgment motion failed to address both causes of action. We construe this

as an intentional and knowing waiver of the first point.


        Second, even if the issue was not waived, we remain obligated to overrule the issue

for Chavez’ motion did indeed address both causes of action. As illustrated in the motion

itself, he asserted that he was not liable to Puga because Puga was outside the scope of

her employment when she encountered the ice and fell. Logically, that ground could only

pertain to Puga’s claim of simple negligence. With regard to that claim, she posited that

Chavez was negligent because he failed to provide her with a safe place to work.2 It does

not matter whether one who sues on the theory of premises liability had an employment

relationship with the alleged tortfeasor and was outside the scope of that relationship when

the injury happened. Rather, liability is dependent upon the tortfeasor’s ownership or

control of the property, knowledge or potential knowledge of a dangerous condition, and

failure to act while having the requisite knowledge. See Meeks v. Rosa, 988 S.W.2d 216,

217 (Tex. 1999) (generally describing the duty of care owed by one who controls property

to a business invitee utilizing the property). On the other hand, the existence of an

employment relationship and whether the complainant acted within its scope is pertinent

to a claim sounding in negligence due to the failure to provide an employee a safe place

to work. So, we cannot but read Chavez’ ground about Puga being outside the scope of

her employment when she fell as attacking her claim of simple negligence.


        2
         According to Puga, Chavez breached his duty to provide a safe place to work by 1) failing to provide
her with a parking space free of ice and snow, 2) failing to enact a policy requiring his employees to park on
land he owned, and 3) requiring his em ployees “to work during icy weather when he kne w or shou ld have
known that he could not provide a parking space . . . wh ich would allow s afe access from plaintiffs [sic ] vehicle
to his business.”

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       Finally, Puga does not assert on appeal that the trial court could not have rejected

her negligence claim on the ground that she was outside the scope of her employment

when the accident occurred.       Indeed, that contention is addressed nowhere in her

appellate brief. This is fatal given that the trial court did not specify the particular ground

upon which it relied in granting the summary judgment. When attempting to reverse a

summary judgment when multiple grounds supporting such relief are alleged in the motion

and none are expressly mentioned by the trial court as the catalyst for its judgment, the

appellant must attack each ground on appeal. Star-Telegram, Inc. v. Doe., 915 S.W.2d

471, 473 (Tex. 1995). That is, it must illustrate why none support the trial court’s judgment.

Id. Because Puga did not address the ground involving whether she was within the scope

of her employment when the injury occurred, she did not carry her burden on appeal.


 Issue Two — Premises Liability and the Purported Existence of Fact Questions


       Next, we consider Puga’s second and last issue. Through it, she asserts that

material issues of fact existed which prevented the court from granting the motion. We

overrule the issue.


       As previously mentioned, it is undisputed that Chavez did not own the property on

which Puga fell. Nevertheless, Puga argues that one who occupies property of another

may have a duty to use ordinary care to keep lands adjacent to his property in a

reasonably safe condition and that Chavez incurred that obligation viz the property on

which she fell. Admittedly, such a duty may arise. However, to the extent that it does, the

duty exists only in relation to property over which the defendant exercises actual control.


                                              5
Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911-12 (Tex. 1996); Wal-Mart Stores,

Inc. v. Alexander, 868 S.W.2d 322, 324 (1993). According to the Supreme Court, the

“relevant inquiry is whether the defendant assumed sufficient control over the part of the

premises that presented the alleged danger so that the defendant had the responsibility

to remedy it.”    County Of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).

Furthermore, the type of control contemplated is that inherent in the ability to manage,

direct, superintend, restrict, regulate, govern, administer, or oversee the lands. See

Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.--Beaumont

1997, writ dism’d by agr.) (defining the word “control” when used in relation to controlling

premises “as ‘the power or authority to manage, direct, superintend, restrict, regulate,

govern, administer, or oversee’”).


       Here, Puga believes that sufficient evidence of control existed because Chavez and

his employees had an “‘understanding’ that they park on the east side of the building which

is not owned by Chavez” and Chavez complained to the lot’s owner that others were

parking in that same area. With regard to the “‘understanding,’” it consisted of Chavez

stating, in his deposition, that:


       . . . I don’t think I have ever in any way or another told patients where to park
       --I mean my employees where to park. I think it’s kind of an understanding
       that they normally park on the east side of the building. [Emphasis added].

Furthermore, Puga testified that though Chavez told her to park “behind the building,” he

did not instruct “her of any need to park in a certain spot behind” it. From evidence

indicating that Chavez may have told one or more of his employees where to park, one



                                              6
cannot reasonably infer that Chavez exercised, attempted to exercise, or intended to

exercise control of the property on which they parked. Indeed, it would be irrational to

conclude that just because someone tells another to park on a public street that the

declarant is purporting to regulate, manage, oversee, govern, or otherwise control the

public street in a manner sufficient to obligate him to make that street safe for all who may

traverse it. Similarly irrational is the conclusion that because a mother tells her son to park

in front of a particular store at a local shopping center, the mother is controlling the lot to

which she alluded. This is no less true when an employer tells his employees to park

somewhere in a neighboring parking lot owned by someone else and apparently available

for parking. In each instance, the party directing the conduct is doing just that, directing

conduct, not exercising control over the realty on which they may eventually park. More

is needed to evince control over the property itself.

       In short, Puga is confusing access with control. That someone may have access

to property does not alone evince control of the property. If this were not true then the

logical result of equating access with control would lead to an untenable outcome. For

instance, in most claims involving premises liability, the claimant undoubtedly had access

to the premises; if not, then they most likely would not have been injured while on it. Now,

if access evinced control then one could reasonably deduce that the claimant controlled

the property which caused the injury. So, in having access to, and thus control over, the

property, it could be said that the claimant is responsible for the breach that caused his

own injuries. Surely that is not a result which a claimant would countenance.

       As to the evidence of Chavez supposedly complaining about some tenant of the

landowner parking in the lot, the hearsay testimony alluded to by Puga actually illustrates

                                              7
that an employee of Chavez told the tenant to move his vehicle because it was in Chavez’

parking area. The tenant then complained to the landowner. In response, the landowner

inspected the area and told the tenant “to just tell them to move their cars, we didn’t want

them over there.” Absent from this excerpt, however, is any evidence illustrating who that

employee was, when the event occurred in relation to Puga’s fall, on whose directive, if

any, the employee acted, whether it was within the scope of the employee’s duties to do

that which he or she did, or whether the area in question was even the area in which Puga

fell. Given this lack of evidence tying Chavez to the incident or the property to the spot at

which Puga fell, one cannot reasonably infer that it connotes effort on the part of Chavez

to restrict, regulate, manage or otherwise control the property on which Puga fell.

       Finally, to the extent Puga cites Wal-Mart Stores, Inc. v. Alexander as support for

her position, we find the case inapposite. There, Alexander stumbled over a ridge at the

base of a concrete ramp leading from the parking lot to Wal-Mart’s store. Though Wal-

Mart had no contractual right to occupy or control the property on which the ramp was

located, it nonetheless built the ramp to facilitate access to the store. Since it built the

ramp on its own initiative and at its own expense, Wal-Mart assumed actual control over

the ramp and the area on which it lay, according to the Supreme Court. Wal-Mart Stores,

Inc. v. Alexander, 868 S.W.2d at 325. Therefore, it had the duty to cure dangerous

conditions caused by it and posed to its customers. Id. at 324-25. Here, nothing of record

suggests that Chavez built or altered the parking lot in general or the area on which Puga

fell. Nor does the evidence purport to suggest that he did anything that caused or

facilitated the dangerous condition (ice) to arise at that particular locale. So, because the



                                             8
circumstances that triggered Wal-Mart’s liability in Alexander are not present here,

Alexander is not dispositive of the outcome here.

       In sum, there exists no evidence of an element necessary to Puga’s claim of

premises liability. That element is actual control over the property on which she fell. And,

because of this, Chavez was entitled to judgment as a matter of law. Furthermore, this

relieves us from having to address her other contentions purportedly illustrating that

summary judgment was improper.

       Having overruled Puga’s issues, we affirm the summary judgment of the trial court.



                                                 Brian Quinn
                                                   Justice




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