                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00336-CV


Linda Lough                               §   From the 48th District Court

                                          §   of Tarrant County (048-254814-11)
v.
                                          §   March 21, 2013

James Pack and Betty Pack                 §   Opinion by Justice Gabriel


                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

       It is further ordered that appellant Linda Lough shall pay all costs of this

appeal, for which let execution issue.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Lee Gabriel
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00336-CV


LINDA LOUGH                                                    APPELLANT

                                       V.

JAMES PACK AND BETTY PACK                                      APPELLEES


                                    ----------

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                       MEMORANDUM OPINION1

                                    ----------

                                  Introduction

     Appellant Linda Lough appeals the trial court’s order granting summary

judgment for appellees James Pack and Betty Pack. We affirm.

                             Background Facts

     Linda Lough and James and Betty Pack were friends. On February 9,

2011, James Pack picked Lough up from her house and took her to the Packs’
     1
      See Tex. R. App. P. 47.4.
house for a visit. There had been an ice storm the day before, and there was ice

on the ground. When Lough left the Packs’ house, she left through a side door

onto the porch. She slipped on ice that had accumulated from the storm and

broke her ankle.

      Lough sued the Packs for gross negligence. The Packs filed a traditional

motion for summary judgment, arguing that under Scott & White Memorial

Hospital v. Fair, 310 S.W.3d 411 (Tex. 2010), naturally accumulating ice is not,

as a matter of law, an unreasonably dangerous condition; therefore, it cannot be

the basis of a premises liability suit. Lough also filed a motion for summary

judgment on her claim.     The trial court granted the Packs’ motion, denied

Lough’s, and dismissed Lough’s claims. This appeal followed.

                             Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to




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summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.           Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).        The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

                               Premises Liability

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

plaintiff depends on the plaintiff’s status. Scott & White, 310 S.W.3d at 412. A

plaintiff can be an invitee, a licensee, or a trespasser. Wyckoff v. George C.

Fuller Contracting Co., 357 S.W.3d 157, 164 (Tex. App.—Dallas 2011, no pet.).

The Packs argue that Lough was a licensee; Lough argues that she was an

invitee. Under both standards, Lough is required to show that she was injured by

“a condition on the land that creates an unreasonable risk of harm.” See Scott &

White, 310 S.W.3d at 412; State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 237 (Tex. 1992). Because we can resolve Lough’s issues on this

ground, we need not determine whether she was an invitee or a licensee.




                                        3
                                      Discussion

      In Lough’s first three issues, she argues that the trial court erred by

granting summary judgment for the Packs based on the ruling in Scott & White

that naturally occurring ice is not an unreasonably dangerous condition.     In her

fifth issue, Lough argues that the trial court erred by not granting her motion for

summary judgment.

      In Scott & White, the plaintiff slipped and fell on ice from a winter storm on

the road that separated the hospital and the parking lot. 310 S.W.3d at 412. The

court held that naturally occurring ice does not present an unreasonable risk of

harm unless there is “assistance or involvement of unnatural contact.” Id. at 414.

Ice that “accumulate[d] as a result of an act of nature” is beyond the premises

owner’s control. Id. at 415 (quoting Coletta v. Univ. of Akron, 49 Ohio App. 3d

35, 36 (1988)). Ice that accumulated by “causes and factors other than the

inclement weather conditions” is an unnatural accumulation that may form the

basis of a premises liability claim. Id. (quoting Porter v. Miller, 468 N.E.2d 134,

136 (Ohio Ct. App. 1983)). For example, frozen liquid that leaked from a vending

machine made unnatural ice that could support a premises liability action. See

Furr’s, Inc. v. Logan, 893 S.W.2d 187, 189, 191–92 (Tex. App.—El Paso 1995,

no writ.). In Scott & White, the defendant established that the ice was in its

natural state and the plaintiff was barred from recovery. 310 S.W.3d at 415.

      In the present case, James Pack testified that the ice that Lough slipped

on was caused by “[t]he weather” and that he did not have leaky pipes or had not


                                         4
thrown water outside to freeze. Lough does not dispute James Pack’s testimony

and points to nothing in the record showing that the ice came from an unnatural

source. The ice, therefore, was a natural accumulation, and it cannot support

Lough’s cause of action.

      Lough’s attempts to distinguish Scott & White are unpersuasive. There is

nothing in the analysis in Scott & White that limits its application to commercial

property, and we see no reason to conclude that natural ice transforms into an

unreasonably dangerous condition simply because it accumulated on private

property instead of a commercial parking lot. Neither does the Packs’ actual

knowledge of the ice, a separate element of her claim, somehow alleviate

Lough’s burden to prove that she was harmed by an unreasonably dangerous

condition. See id. at 415–16 (rejecting the plaintiff’s contention that a premises

owner should be liable when he has notice that a natural accumulation of ice has

“created a condition substantially more dangerous than a business invitee should

have anticipated”). Because an essential element of Lough’s claim has been

negated, she is precluded from recovery. We overrule her first, second, third,

and fifth issues.

      In her fourth issue, Lough complains that she is entitled to pursue her

claim because she is a third-party beneficiary of the Packs’ homeowner’s policy.

She also raises the constitutionality of the lower court’s holdings. There are no

pleadings to support Lough’s contention that she is a third-party beneficiary, and

she did not raise these issues in the trial court. Lough has thus waived these


                                        5
arguments.   See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997).           We

overrule Lough’s fourth issue.

                                  Conclusion

      Having overruled Lough’s five issues on appeal, we affirm the trial court’s

judgment.




                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: March 21, 2013




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