                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00232-CV


ALICIA RAMIREZ                                                      APPELLANT

                                       V.

CRAIG DEEN                                                           APPELLEE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CV10-0506

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      In three issues, Appellant Alicia Ramirez appeals from a take-nothing

judgment entered in accordance with a jury verdict in her premises-liability suit

against Appellee Craig Deen. We will affirm.



      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      Deen owns a two-story house in Parker County. The house has an attic

that is accessible from two locations—an upstairs doorway and a pull-down

ladder in the garage.    Portions of the attic located near both entrances are

“floored,” i.e., finished with a plywood covering; other parts of the attic are not

floored, revealing exposed beams.      Several lights are located throughout the

attic, although certain areas are not illuminated when the lights are on. Deen

stores various things in the attic on both the floored areas and on the exposed

beams.

      Ramirez worked as a housekeeper for Deen and his family for ten years,

beginning sometime around 2000. She had access to the entire house, including

the attic. Ramirez entered the attic many times over the course of her first eight

years of employment with Deen.

      On April 4, 2008, Ramirez was alone at Deen’s house when she went to

the attic to retrieve a metal end table with a glass top for Deen.2 Thinking that

the table was somewhere in the attic near the upstairs doorway, Ramirez first

entered the attic through that location. When she saw that the table was in a

different part of the attic, closer to the other entrance, she exited the upstairs

doorway and entered the attic through the garage. According to Ramirez, she

turned on the light and started walking, but when she looked where to step, she

      2
      Deen could not recall if he had asked Ramirez to retrieve the table or if
she had volunteered to retrieve it.


                                        2
fell through the attic and onto the garage floor. Ramirez had surgery on her heel

and performed physical therapy, but she continued to experience pain and

discomfort in her foot.

      Ramirez sued Deen to recover damages for injuries that she sustained in

connection with the fall, alleging claims for negligence and premises liability. The

case eventually proceeded to a jury trial. The trial court included the following

definitions, among others, in its charge to the jury:

      “Ordinary Care” when used with respect to the conduct of Alicia
      Ramirez means that degree of care that would be used by a person
      of ordinary prudence under the same or similar circumstances.

      “Ordinary Care” when used with respect to the conduct of Craig
      Deen as an owner of a premises, means that degree of care that
      would be used by an owner of ordinary prudence under the same or
      similar circumstances.

The trial court denied Ramirez’s requested definitions for “open and obvious” and

“concealment.” Question number one asked, “Did the negligence, if any, of the

person or parties named below proximately cause the occurrence in question?”

The question included an instruction identifying under what circumstances Deen

would be negligent with respect to a condition of the premises.           The jury

answered “No” in the space for Deen and “Yes” in the space for Ramirez. The

trial court later signed a final judgment ordering that Ramirez take nothing by her

suit, and this appeal followed.




                                          3
                             III. JURY CHARGE ISSUES

      Ramirez argues in her first issue that the trial court abused its discretion by

including in the jury charge a definition of ordinary care as to her. She contends

that the definition improperly shifted the burden to her to prove “that if she knew

of the dangerous condition, Deen d[id] not have a duty to warn her.” In her

second issue, Ramirez argues that the trial court abused its discretion by failing

to include instructions or definitions for open and obvious and concealment in the

charge.   She suggests that the instructions or definitions were necessary to

alleviate the error caused by the ordinary-care definition, which improperly placed

the burden on her to disprove her knowledge of a dangerous condition.

      Both of Ramirez’s issues implicate the now-defunct “no-duty” rule. It used

to be that in addition to proving that a defendant owed a duty and violated that

duty, a plaintiff had to “prove the absence of his own subjective knowledge and

appreciation of any danger,” i.e., to negate “no duty.” Parker v. Highland Park,

Inc., 565 S.W.2d 512, 516 (Tex. 1978). Under the no-duty doctrine, “if there

[were] open and obvious dangers of which the invitees kn[ew], or of which they

[were] charged with knowledge, then the occupier owe[d] them ‘no duty’ to warn

or to protect the invitees.” Id. (emphasis added). Therefore, “[n]o-duty . . . was

said to defeat a plaintiff’s action because a plaintiff’s knowledge and appreciation

of a danger cut off his action before reaching the issue about a defendant’s

negligence.” Id. at 517. Parker expressly abolished the no-duty rule but did not

change the plaintiff’s obligation to establish a duty on the part of the defendant


                                         4
and a violation of that duty. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211,

216‒17 (Tex. 2008); Dixon v. Van Waters & Rogers, 682 S.W.2d 533, 533‒34

(Tex. 1984).

      As worded, nothing in the ordinary-care definition as to Ramirez imposed a

burden upon her to disprove her knowledge of the dangerous condition. The

inclusion of the definition instead served a very different, legitimate purpose.

      A trial court “shall submit such instructions and definitions as shall be

proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. The trial court

enjoys considerable discretion in framing a jury charge and is given broad

latitude to determine the propriety of explanatory instructions and definitions.

H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). We review the

trial court’s submission of instructions and definitions for an abuse of discretion.

Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); Crowson v. Bowen, 320

S.W.3d 486, 488 (Tex. App.—Fort Worth 2010, no pet.). We will not reverse a

judgment for charge error unless the error was harmful because it probably

caused the rendition of an improper verdict. Columbia Rio Grande Healthcare,

L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).

      Deen pleaded that Ramirez was negligent, failed to use ordinary care, and

was solely responsible for the accident. Along those lines, Deen testified at trial

that he had no responsibility for—and that Ramirez was at fault in causing—the

accident. Deen acknowledged that he did not tell Ramirez where she should and

should not step in the attic, but he explained, “It seems very clear to me that an


                                          5
adult would know where to walk and where not to walk”; in other words, he had

no concern that Ramirez did not understand that she was not supposed to walk

on the sheetrock.

      Deen examined the spot where Ramirez fell and observed that there was a

hole in the sheetrock and sheetrock on the garage floor. He did not see any

broken plywood, broken rafters, or bits of wood. When he had the hole in the

garage ceiling repaired, there were no repairs made to anything other than the

sheetrock. Deen testified that there was no doubt in his mind that Ramirez had

“stepped through the sheetrock and landed on the floor of the garage.” Indeed,

one of Ramirez’s own medical records stated that she “was ambulating in an attic

when she missed the stud and fell through the sheetrock onto the floor.” Another

record stated that Ramirez “was walking on rafter boards and her ankle twisted

and she fell though the [sheetrock].” Ramirez agreed that the area where she

had fallen was replaced with sheetrock, and although she thought that she was

standing on wood when she fell, she acknowledged that she could have been

standing somewhere else.

      The pleadings and evidence thus raised the issue that Ramirez’s own

negligence had caused, or at least contributed to, the accident; consequently,

question number one inquired not only whether Deen’s negligence (with respect

to a condition of the premises) had proximately caused the accident, but also

whether Ramirez’s negligence had caused the accident. Because the issue of

Ramirez’s negligence was squarely before the jury, the trial court properly


                                       6
included a definition of ordinary care as to her. See H.E. Butt Grocery Co., 985

S.W.2d at 23. Moreover, because the ordinary-care definition did not place the

burden on Ramirez to disprove her knowledge of the dangerous condition, open

and obvious and concealment instructions or definitions were not necessary to

“minimize the harm” from the definition, as Ramirez contends.3

      Ramirez complains that the charge did not identify who had the burden of

proof on which claim. “The placing of the burden of proof may be accomplished

either through a global admonitory preponderance-of-the-evidence instruction or

within each jury question.” Morales v. Chrysler Realty Corp., 843 S.W.2d 275,

279 (Tex. App.—Austin 1992, no writ).        The charge here used a global

admonitory instruction—“which is the preferred method and is normally used in

pattern jury charges”—and required a “Yes” answer to be based on a

preponderance of the evidence. Id. Question number one properly included a

blank space next to Deen and a blank space next to Ramirez for the jury to

answer either “Yes” or “No.” Moreover, while question number one asked about

the negligence of both Deen and Ramirez, it specifically instructed the jury that

“[w]ith respect to the condition of the premises, CRAIG DEEN was negligent if,”

among other things, “CRAIG DEEN failed to exercise ordinary care to protect

ALICIA RAMIREZ from the danger[] by . . . failing to adequately warn ALICIA

RAMIREZ of the unreasonably dangerous condition.” [Emphasis added.] Thus,

      3
        The trial court also could have reasonably concluded that the requested
instructions or definitions had the potential to create confusion where none
existed.

                                       7
as worded, the instruction placed the burden on Ramirez to prove her premises

liability claim.4

       We hold that the trial court did not commit any abuse of discretion in its

charge to the jury. We overrule Ramirez’s first and second issues.

                            IV. FACTUAL SUFFICIENCY

       In her third issue, Ramirez challenges the factual sufficiency of the

evidence to support the jury’s negligence findings in question number one.

Challenges to the factual sufficiency of the evidence must be raised in a motion

for new trial. See Tex. R. Civ. P. 324(b)(3); Tex. R. App. P. 33.1(a)(1). Ramirez

failed to preserve this issue for appellate review because she did not raise it in

her motion for new trial. We overrule Ramirez’s third issue.

                                 V. CONCLUSION

       Having overruled Ramirez’s three issues, we affirm the trial court’s

judgment.



                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: August 28, 2014


       4
      Both sides made it clear during closing arguments that Ramirez had the
burden to prove her premises liability claim against Deen.


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