Opinion issued June 25, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00267-CV
                           ———————————
                      RICHARD CULOTTA, Appellant
                                        V.
 DOUBLETREE HOTELS LLC, DOUBLETREE MANAGEMENT LLC,
  HILTON INNS LLC, HILTON RESORTS CORPORATION, HILTON
PROPERTIES, LTD., AND GAL-TEX HOTEL CORPORATION, Appellees


                   On Appeal from the 295th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-73364


                         MEMORANDUM OPINION

      Richard Culotta sued seven entities for damages after he tripped and fell in a

DoubleTree hotel restaurant. The defendants successfully moved for summary

judgment, which later became final, and Culotta appealed.
      Culotta raises twelve issues in his appeal. Because we conclude that

Culotta’s premises-liability claim fails as a matter of law, we resolve this appeal

against Culotta on that determinative issue and do not reach his other issues.

                                      Background

      Richard Culotta and a co-worker took a business trip to Houston and stayed

at a DoubleTree hotel near the airport. They decided to eat dinner at the hotel

restaurant. While the two were being led to their table, Culotta tripped on the edge

of a double-fountain water feature in the restaurant, fell into one of the fountains,

and was injured. Culotta brought a premises-liability claim against seven entities,

all of which were believed to be related to the hotel or to each other. Culotta’s wife

asserted derivative claims as well.

      Culotta argued that the fountain feature was unreasonably dangerous in two

regards: first, the edging had a low profile, and, second, there were no barriers to

prevent a person who had tripped from falling into the fountains.

      All seven entities, collectively referred to as DoubleTree, filed a dual-

purpose motion for summary judgment. They moved for traditional summary

judgment, arguing, among other things, that they had no duty to Culotta. And they

moved for no-evidence summary judgment, arguing that, after adequate time for

discovery, Culotta had no evidence in support of several, specified elements of his

premises-liability claim.


                                          2
      Culotta responded by arguing that DoubleTree was not entitled to judgment

as a matter of law and by attaching evidence in support of his premises-liability

claim, including his deposition, a photograph of the fountain feature,1 and an

affidavit and statement from Culotta’s co-worker recounting what had happened

and what various hotel employees said to her after Culotta fell.

      Culotta stated in his deposition that he and his co-worker were being led to a

back dining area. Their path went from the front of the restaurant, directly toward

the double-fountain water feature, across a walkway between the two fountains,

and to the back of the restaurant where additional dining tables were placed.

Culotta walked past the front of the fountains and was on the short walkway

between the fountains when the restaurant employee realized he forgot a menu and

turned to go back for it. Culotta shuffled over to let the worker past him. His co-

worker also moved past him. Then, all agreed the extra menu was not needed. The

restaurant worker and Culotta’s co-worker both walked past him again, and Culotta

shuffled backward to let them pass. Culotta turned to his left to follow the other

two. When he did, he “clipped the ledge of the fountain” on his left with his left

ankle and fell into the fountain.

      Culotta testified there was nothing obstructing his view of the fountains as

he walked toward them. He could not say with certainty whether, at the point he


1
      A copy of the photograph is attached below as an addendum.
                                          3
turned to his left to resume walking to his table, he was still on the walkway

between the fountains or if he had shuffled back enough to have been outside the

fountain feature. But he knew his back was turned to the fountain when he turned

left to resume walking to the table.

      The photograph in the summary-judgment record shows a double-fountain

water feature rising a few feet higher than the backs of the chairs at the nearby

dining tables.2 Between the fountains is a walkway that leads to a back dining area.

Culotta marked an “X” where a chair was placed near the right fountain, a circled

“Y” where Culotta says he tripped on the left fountain, and a “Z” where his hands

prevented him from hitting his head on the fountain as he fell in.

      The co-worker’s affidavit and statement recounted what various hotel

employees said to her after Culotta’s fall, including that other guests had tripped on

the lip of the fountain and that the restaurant usually blocked the fountain with

tables.

      DoubleTree objected to the employee statements, arguing that Culotta failed

to establish an agency relationship between those who made the statements to

Culotta’s co-worker and the named defendants. The trial court granted

DoubleTree’s objections.




2
      See addendum.
                                          4
      The trial court also granted DoubleTree’s summary-judgment motion

without specifying the grounds for doing so. The summary-judgment order became

appealable after Culotta’s wife’s claims were dismissed without prejudice. Culotta

appeals.

                                Premises Liability

      Culotta contends the trial court erred in granting summary judgment on his

premises-liability claim.

A.    Standard of review

      A defendant that files a traditional motion for summary judgment has the

burden to show that no genuine issue of material fact exists and that the trial court

should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat

Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A

defendant moving for traditional summary judgment must conclusively negate at

least one essential element of each of the plaintiff’s causes of action or

conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). For a defendant to prevail on a no-

evidence motion for summary judgment, the defendant must establish that there is

no evidence to support an essential element of the plaintiff’s claim on which the

plaintiff would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn

v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet.


                                          5
denied). The burden then shifts to the plaintiff to present evidence raising a

genuine issue of material fact as to each of the elements specified in the

defendant’s motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Hahn, 321 S.W.3d at 524.

      We review a trial court’s grant of summary judgment de novo. Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary

judgment, we must (1) take as true all evidence favorable to the nonmovant, and

(2) indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);

Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

      Generally, when a party moves for summary judgment on no-evidence and

traditional bases, we analyze the no-evidence motion first. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). But here, because we “must affirm

summary judgment if any of the summary judgment grounds are meritorious,” FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000), and one

of the grounds in DoubleTree’s summary-judgment motion is dispositive, we will

address the traditional summary-judgment grounds only. See Wallace v.

ArcelorMittal Vinton, Inc., 536 S.W.3d 19, 26 (Tex. App.—El Paso 2016, pet.

denied).




                                        6
B.    Applicable law

      Premises liability is not strict liability. Wal-Mart Stores, Inc. v. Reece, 81

S.W.3d 812, 816 (Tex. 2002). And a landowner “is not an insurer of [a] visitor’s

safety.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010); see

Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex. 2006). Instead, a landowner’s

duty to an invitee is to exercise reasonable care to make the premises safe. Austin

v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015). A landowner can satisfy

this duty by eliminating an unreasonably dangerous condition or mitigating the

condition so that it is no longer unreasonably dangerous. Id. A landowner can also

satisfy the duty, in most cases, by providing an adequate warning of the danger. Id.

      When an invitee is aware of a dangerous premises condition—whether

because the danger is obvious or because the landowner provided an adequate

warning—the condition will, in most cases, no longer pose an unreasonable risk in

that the law presumes an invitee will take reasonable measures to protect against

known risks. Id.; Advance Tire and Wheels, LLC v. Enshikar, 527 S.W.3d 476, 481

(Tex. App.—Houston [1st Dist.] 2017, no pet.).

      Combined, these concepts present the general rule regarding a landowner’s

duty to an invitee, which is “to make safe or warn against any concealed,

unreasonably dangerous conditions of which the landowner is, or reasonably

should be, aware but the invitee is not.” Austin, 465 S.W.3d at 203.


                                         7
      A dangerous condition that an invitee reasonably should be aware of is one

that is open and obvious. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d

401, 412 (Tex. 2009). Defects that are open and obvious or otherwise known to an

invitee are outside the landowner’s general duty to warn. Austin, 465 S.W.3d at

203; 4Front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex.

2016) (no duty when premises condition is open and obvious); Brookshire Grocery

Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (no duty when invitee is aware of

hazard).

      Duty is a question of law. Allen Keller Co. v. Foreman, 343 S.W.3d 420,

425 (Tex. 2011); McCall v. Hillis, 562 S.W.3d 98, 101 (Tex. App.—San Antonio

2018, pet. filed) (“Whether a duty exists in a premises-liability case is a question of

law for the court to decide from the facts surrounding the occurrence in

question.”); Austin, 465 S.W.3d at 204 (no duty as matter of law in certain

circumstances); Enshikar, 527 S.W.3d at 480 (duty is question of law). Relatedly,

whether a defect qualifies as “open and obvious,” such that there is no duty to

warn, presents a question of law for the court. Coffee v. F. W. Woolworth Co., 536

S.W.2d 539, 541 (Tex. 1976) (stating that “question of whether or not a premises

defect is open and obvious is for the court to decide as a matter of law”); Tex.

Dep’t of Transp. v. Ramirez, 566 S.W.3d 18, 25 (Tex. App.—San Antonio 2018,




                                          8
pet. filed); Stirrup v. Anschutz Tex., LP, No. 05-17-00613-CV, 2018 WL 3616880,

at *5 (Tex. App.—Dallas July 3, 2018, no pet.) (mem. op.).

      These two no-duty circumstances—when a hazard is known to the invitee

and when a hazard is open and obvious—are two sides of the same coin: one

focused on the subjective knowledge of the invitee and the other on what would be

reasonably observable to a person exercising ordinary care under an objective

standard. See Jordan v. Tex. Children’s Hosp., No. 14-17-00699-CV, 2018 WL

4137209, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2018, no pet.) (mem.

op.); see also Nethery v. Turco, No. 05-16-00680-CV, 2017 WL 2774448, at *2

(Tex. App.—Dallas June 27, 2017, no pet.) (mem. op.) (discussing two concepts

together and concluding that patch of ice on driveway was “open and obvious or

otherwise known to” invitee).

      Some of the Texas Supreme Court’s cases in this area have focused more on

the invitee’s subjective knowledge that a defect exists, while others have focused

on the objective “open and obvious” nature of the property defect. Those in the

first category include Goss. There, an employee stepped over a cart to get into a

cooler and then, as she exited the cooler, struck her shin on the same cart. 262

S.W.3d at 795. The Court held that there was no duty to warn of hazards that are

already appreciated. Id. A case in the second, open-and-obvious category is

Rosales. There, the Court held that the danger of falling off the edge of an


                                        9
undamaged sidewalk was open and obvious and therefore could not support a

premises-liability claim. 505 S.W.3d at 912.

C.    Trial court did not err in granting summary judgment to DoubleTree

      There is nothing in the record to indicate the exact height of the fountains in

the DoubleTree hotel restaurant; however, the photograph reveals that the

fountains stand more than a couple feet above the height of nearby dining tables

and chairs. The fountains have tiers that allow water to cascade down the various

levels until it reaches the matching pools below. The walkway to the back dining

area is situated between the two pools. The water fountains add an aesthetic

element to the restaurant.

      Culotta’s co-worker described the water feature as “dividing the restaurant

in half,” and Culotta said that “it was a straight walk” from the front of the

restaurant to the fountains, as he and his co-worker made their way to the back

dining area. Culotta testified that there was nothing obstructing his view of the

fountains as he walked toward them. The co-worker stated that the “sound of

running water” could be heard in the area of the walkway. And Culotta testified

that he successfully moved from the front dining area onto the narrower walkway,

meaning he avoided the leading edge of the fountain, before he stopped to allow

the restaurant worker and his co-worker to move past him, return, and move past

him again.


                                         10
      The record does not support any inference that the fountains were concealed.

Instead, the evidence supports the conclusion that the fountains were objectively

observable to a reasonable person exercising ordinary care in traversing the

restaurant. Thus, we hold that the fountains were open and obvious conditions. See

Biggs v. Bradford Mgmt. Co., No. 05-17-00869-CV, 2018 WL 3629106, at *3

(Tex. App.—Dallas July 31, 2018, pet. denied) (mem. op.) (holding that skylights

through which person fell while working on the roof were open and obvious

conditions).

      Culotta does not argue that any exception applies in this circumstance to

place a duty on DoubleTree to warn against open and obvious dangers. Cf.

Nethery, 2017 WL 2774448, at *3 (in affirming summary-judgment against

invitee, stating that invitee presented no evidence to bring facts within necessary-

use exception to no-duty rule).

      Because the fountains were open and obvious conditions on the premises,

DoubleTree had no duty, as a matter of law, to Culotta to warn against them. See

Rosales, 505 S.W.3d at 912 (rendering judgment for premises owner on basis that

sidewalk was open and obvious premises condition); Biggs, 2018 WL 3629106, at

*3 (holding that skylights were open and obvious property condition against which




                                        11
there was no duty to warn worker who fell through skylight).3 We conclude the

trial court did not err in granting summary judgment to DoubleTree on Culotta’s

premises-liability claim because DoubleTree had no duty as a matter of law.

                          Culotta’s other appellate issues

      Culotta raises several additional issues in his appeal, including challenges to

the trial court’s rulings on DoubleTree’s objections to his summary-judgment

evidence, assertions of discovery abuse by DoubleTree, and related claims for

equitable relief to allow him to pursue his premises-liability claim. We do not

reach these issues because the conclusion that DoubleTree had no duty to Culotta

is determinative.

                                     Conclusion

      We affirm.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

3
      We also note that the evidence indicates Culotta was subjectively aware of the
      fountains, such that he knew of their presence as he walked toward and partly past
      them. See Wallace v. ArcelorMittal Vinton, Inc., 536 S.W.3d 19, 23–24 (Tex.
      App.—El Paso. 2016, pet. denied) (concluding no duty to warn of tripping hazard
      that person successfully walked past once but tripped over when passing the
      second time). While it is possible that Culotta became disoriented to the fountains
      in the process of stopping, turning, shuffling backward, and turning again, that
      would not negate his awareness of the fountains.
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Addendum




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