                                                                        ACCEPTED
                                                                    03-15-00243-CV
                                                                            6444413
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                               8/11/2015 1:12:18 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK

                 No. 03-15-00243-CV

            IN THE COURT OF APPEALS         FILED IN
                                     3rd COURT OF APPEALS
       THIRD APPELLATE DISTRICT OF TEXASAUSTIN, TEXAS
                    AT AUSTIN        8/11/2015 1:12:18 PM
                                              JEFFREY D. KYLE
                                                   Clerk
                   KRISTIN LEE,
                     Appellant

                         v.

K&N MANAGMENT, INC. d\b\a RUDY'S COUNTRY STORE and
                    BAR-B-Q
                     Appellees


                   ON APPEAL FROM
         THE 98th JUDICIAL DISTRICT COURT
              TRAVIS COUNTY, TEXAS
              (Honorable Rhonda Hurley)


      APPELLANT'S REPLY BRIEF TO APPELLEES


                       Law Offices of Price Ainsworth, P .C.
                       Price Ainsworth
                       State Bar No. 00950300
                       3821 Juniper Trace, #210
                       Austin, Texas 78738
                       512-233-1111
                       512-472-9157 fax

                       ATTORNEY FOR APPELLANT
                       KRISTIN LEE
                                    TABLE OF CONTENTS


TABLE OF CONTENTS..................................................................................                  11


INDEX OF AUTHORITIES.............................................................................                   Ill


INTRODUCTION ............................................................................................            1

POINTS OF REPLY.........................................................................................             I

1.       The plant growth was dangerous.

2.       Rudy's had opportunity to discover plant growth prior to Lee's fall.
ARGUMENT AND AUTHORITIES...............................................................                              1

A.       The plant growth was dangerous. ...... ...................... ...............................               1

B.       Rudy's had opportunity to discover plant growth prior to Lee's fall.....                                    3

PRAYER...........................................................................................................    4

CERTIFICATE OF SERVICE.........................................................................                      5




                                                        11
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellant Kristin Lee files this Reply Brief in response to the Brief filed by

Appellees K&N Management, Inc. d\b\a Rudy's Country Store and Bar-B-Q

("Rudy's").

                                INTRODUCTION

      On July 22, 2015, Kristin Lee filed her Appellant's Brief. Appellees K&N

Management, Inc. d\b\a Rudy's Country Store and Bar-B-Q filed their brief on

July 24, 20 15. Appellant now files her Reply.

                               POINTS OF REPLY


      1.      The plant growth was dangerous.

      2.      Rudy's had opportunity to discover plant growth prior to Lee's fall.

                         ARGUMENTS AND AUTHORITIES

A.    The plant growth was dangerous.

      In Appellee Rudy's brief, two points of contention were raised.          Those

points are addressed here in the order they appear in Appellee's brief. First, the

plant growth that protruded over the sidewalk where Ms. Lee fell constituted a

hazardous condition.     Evidence of such condition was presented through the

deposition of a former Rudy's employee.




                                          1
      Justin House was an employee of Rudy's at the time of the incident. 1 He

was about 25 feet from Kristin Lee when she fe11. 2 He observed an obstacle, a

plant, on the sidewalk. 3 The plant had overgrown onto the sidewalk.4 The plant

protruded out over the sidewalk. 5 When he went back to work in the next day or

two, the plant had been removed. 6

      Mr. House testified that a landscaping company came out to the scene

regularly (he said once a week). 7 He told the Lee family (he is a friend of Kristin's

brother) that Kristin Lee fell over a plant. 8 He also gave a statement to the general

manager at Rudy's that Kristin Lee fell over some bushes hanging over the

sidewalk. 9 In Mr. House's opinion, the area looked safer after the plants were

eliminated from hanging over the walkway, a main entrance to the restaurant. 10 He

noticed that the plants had been cut back about one week or so later. 11

                                                                                          12
      Mr. House saw Kristin Lee step on a bush protruding over the sidewalk.

When asked whether the bush protruding over the sidewalk was a hazardous


1
   C.R. at p. 138 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit C - depo. of Justin House at p. 8).
2
  Jd. at p. 139 (House depo at p. 12).
3 Jd. at p. 140 (House depo at p. 17).
4
  Jd. at p. 141 (House depo at p. 18).
5
  Jd. at p. 142 (House depo at p. 21).
6
  !d. at p. 144 (House depo at p. 28).
7
  /d. at p. 143 (House depo at p. 26).
8
  /d. at p. 145 (House depo at p. 39).
9
  /d. at pp. 146-150 (House depo at pp. 46-50).
10
   /d. at pp. 151-152 (House depo at pp. 51-52).
11
   /d. at p. 153 (House depo at p. 55).
12
    /d. at pp. 154-155 (House depo at pp. 59-60).


                                             2
condition, Mr. House testified that "as a business owner, yes, I would take more
                                 13
precautions doing that."              Such testimony, by a Rudy's employee, established the

presence of a hazardous condition on the premises in question.

B.        Rudy's had opportunity to discover plant growth prior to Lee's fall.

          The second point of contention raised in Appellee's brief concerns the

element of constructive knowledge of the hazardous condition.

          The testimony delineated above suggests that the Appellant tripped over

foliage that had been permitted to extend over a walkway that patrons would

foreseeably be required to use to enter the restaurant. There is no suggestion that

the bush "suddenly" grew over the walkway. Indeed, the reasonable inference is

that the plants grew slowly over the entrance. Unlike the event where a fellow

shopper spills soap on a grocery store floor immediately before the next customer

slips in it, the hazard at issue must logically have existed for a considerable time

before Ms. Lee fell. The bush was observed by a Rudy's employee as an obstacle

as the event took place, the employee thought that the walkway looked safer when

the bush was removed after the event, and the company had a procedure in place

for periodically maintaining the landscaping. Genuine issues of material fact exist

as to how long Rudy's knew or should of known of the hazardous condition on its

premises.


13
     /d. at p. 156 (House depo at p. 61 ).


                                                   3
                                     PRAYER

       Accordingly, Appellants pray that this Court reverse the judgment of the

trial court grant their request for all relief, at law and in equity to which they are

entitled.

                                 Respectfully submitted,

                                 LAW OFFICES OF PRICE AINSWORTH, P.C.
                                 3821 Juniper Trace, #21 0
                                 Austin, Texas 78738
                                 512-233-1111
                                 512-4 72-9157 fax




                                 By: _____________________
                                      Price Ainsworth
                                      State Bar No. 00950300

                                 ATTORNEY FOR APPELLANT KRISTIN LEE


                      CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using Microsoft
Word and contains 503 words, as determined by the computer software's word-
count function, excluding the sections of the document listed in Tex. R. App. P.
9.4(i)(1 ).




                                              Price Ainsworth




                                          4
                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing document
has been served to the following counsel of record as indicated below on the 11th
day of August 2015.

VIA FACSIMILIE- 512-383-0503
Ethan Goodwin
Clark, Trevino & Associates
1701 Directors Boulevard, #920
Austin, Texas 78744




                                            Price Ainsworth




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