Affirmed and Opinion filed July 27, 2017.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00197-CV

                        RUTH HERNANDEZ, Appellant
                                        V.

                   OZIEL GONZALEZ-FLORES, Appellee

                   On Appeal from the 129th District Court
                            Harris County, Texas
                     Trial Court Cause No. 2014-53029A

                                 OPINION


      Appellant Ruth Hernandez was accidentally shot in the ankle by a guest at a
gathering hosted by appellee Oziel Gonzalez-Flores. Hernandez sued Gonzalez-
Flores for negligence, alleging theories of premises liability as well as negligent
activity. Following discovery, Gonzalez-Flores filed a traditional and no-evidence
motion for summary judgment in his favor, which the trial court granted. Hernandez
appeals the judgment, raising two issues.
      In her first issue, Hernandez argues the trial court erred in granting summary
judgment on her premises liability theory because the record shows a gun was left
on a table at Gonzalez-Flores’s party where guests were drinking alcohol, which
raises a genuine issue of material fact regarding whether Gonzalez-Flores was
grossly negligent. We conclude this evidence alone does not show Gonzalez-Flores
was subjectively aware of an extreme degree of risk. In her second issue, Hernandez
argues the trial court erred in granting summary judgment on her negligent activity
theory. We conclude the leaving of a gun is not an ongoing activity. Therefore, the
summary judgment record does not support a negligent activity theory. We affirm.

                                       BACKGROUND

      Gonzalez-Flores decided to host a get-together and invited some friends and
family over to barbecue. Gonzalez-Flores’s cousins, Gabino Flores and Junior
Flores, were among the people who attended. At the time, Hernandez was dating
Junior, and he and Gabino invited Hernandez to Gonzalez-Flores’s house for the get-
together.

      Guests started arriving between 5:00 p.m. and 7:00 p.m. Gabino arrived with
his four-year-old son, who went inside the house to play with Gonzalez-Flores’s son.
Someone at the get-together went to the store to buy food and beer. The guests were
gathered outside while Gonzalez-Flores and others cooked at the barbecue pit. The
beer was outside near a picnic table. Gonzalez-Flores and other guests drank beer,
and Hernandez drank wine that she brought for herself. Although people were
drinking, no one appeared intoxicated.

      Gabino brought a .45 caliber pistol. While it was still light outside, Gonzalez-
Flores and some of the guests, including Hernandez, shot the gun at soda cans in the
backyard. Hernandez testified in her deposition that until she was accidentally shot
in the ankle, she never felt unsafe.
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       At some point, the gun was placed on the picnic table. Around 11 p.m. or
11:30 p.m., Hernandez, Gabino, and Junior were standing around the table when
Gabino grabbed the gun and accidentally shot Hernandez in the ankle. Gonzalez-
Flores was away from the table with his back turned and did not see who shot
Hernandez.

       Hernandez sued both Gonzalez-Flores and Gabino for negligence. Hernandez
asserted both premises liability and negligent activity theories against Gonzalez-
Flores. Following discovery, Gonzalez-Flores filed a traditional and no-evidence
motion for summary judgment, asserting the following grounds: (1) there was no
evidence he breached his duty as a premises owner; (2) he had no duty as a social
host under the negligent activity cause of action; and (3) there was no evidence that
he created a dangerous situation that would give rise to a duty. Hernandez responded
that there was evidence raising a fact issue that Gonzalez-Flores was grossly
negligent as a premises owner, that he owed a duty of reasonable care to Hernandez
under the active negligence cause of action, and that Gonzalez-Flores created a
dangerous situation. The trial court granted Gonzalez-Flores’s motion for summary
judgment without specifying the grounds, and Hernandez appealed.1

                                          ANALYSIS

I.     Standard of review and applicable law

       We review the trial court’s grant of summary judgment de novo. See, e.g.,
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider
all of the summary judgment evidence in the light most favorable to the nonmovant,
crediting evidence favorable to the nonmovant if a reasonable factfinder could and

       1
        The trial court also granted Hernandez’s motion to sever her case against Gonzalez-Flores
from her case against Gabino, making the trial court’s order granting summary judgment to
Gonzalez-Flores final.

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disregarding contrary evidence unless a reasonable factfinder could not. See Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When a party moves for
summary judgment on both traditional and no-evidence grounds, we address the no-
evidence grounds first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). If the trial court grants summary judgment without specifying the grounds,
we affirm the judgment if any of the grounds presented are meritorious. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

      In a no-evidence motion for summary judgment, the movant represents that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden
then shifts to the nonmovant to present evidence raising a genuine issue of material
fact as to the elements specified in the motion. Tamez, 206 S.W.3d at 582.

      The elements of negligence are a legal duty, breach of that duty, and damages
proximately caused by the breach. Taylor v. Louis, 349 S.W.3d 729, 734 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). Premises liability and negligent activity
are both forms of negligence, but are distinct theories of recovery. E.I. DuPont de
Nemours & Co. v. Roye, 447 S.W.3d 48, 56 (Tex. App.—Houston [14th Dist.] 2014,
pet. dism’d by agr.). “[N]egligent activity encompasses a malfeasance theory based
on affirmative, contemporaneous conduct by the owner that caused the injury, while
premises liability encompasses a nonfeasance theory based on the owner’s failure to
take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010).



II.   The trial court did not err in granting Gonzalez-Flores no-evidence
      summary judgment on Hernandez’s premises liability theory.
      Hernandez argues the trial court erred in granting summary judgment to

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Gonzalez-Flores on her premises liability theory because there was evidence raising
a genuine issue of material fact that he was grossly negligent.           Specifically,
Hernandez points to evidence that Gonzalez-Flores was aware people were drinking
and had been shooting a gun. Gonzalez-Flores responds that his knowledge that
guests were drinking while there was a gun at his house is not evidence that he was
grossly negligent.

      A.     Gonzalez-Flores owed a duty not to injure Hernandez by gross
             negligence.
      Premises liability is a form of negligence in which the owner’s duty is
determined by the plaintiff’s status as an invitee, licensee, or trespasser. Taylor, 349
S.W.3d at 734. It is undisputed that Hernandez was a licensee because she was a
social guest. See id. A premises owner has a duty not to injure a licensee by willful,
wanton, or gross negligence. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974);
Taylor, 349 S.W.3d at 734. This is the same duty owed to a trespasser. Boerjan v.
Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014); Almanza v. Navar, 225 S.W.3d 14, 21
(Tex. App.—El Paso 2005, no pet.). Additionally, an owner has a duty to warn the
licensee or make a dangerous condition reasonably safe if the owner has actual
knowledge of the dangerous condition and the licensee does not. Taylor, 349
S.W.3d at 734. Here, Hernandez is not arguing Gonzalez-Flores breached a duty to
warn or make safe, but that he breached a duty not to injure her willfully, wantonly,
or by gross negligence.

      Gross negligence requires an objective element and a subjective element.
Boerjan, 436 S.W.3d at 311; see Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)
(West 2015). First, “viewed objectively from the actor’s standpoint, the act or
omission complained of must involve an extreme degree of risk, considering the
probability and magnitude of the potential harm to others.” Bojeran, 436 S.W.3d at


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311 (internal quotation marks omitted). Second, “the actor must have actual,
subjective awareness of the risk involved, but nevertheless proceed[s] in conscious
indifference to the rights, safety, or welfare of others.” Id. (internal quotation marks
omitted). Under the objective element, an “extreme risk” is not a remote possibility
of injury or even a high probability of minor harm, but “the likelihood of serious
injury to the plaintiff.” Id.; Crooks v. Moses, 138 S.W.3d 629, 640 (Tex. App.—
Dallas 2004, no pet.). Under the subjective element, actual awareness means the
defendant knew about the risk, but his acts or omissions demonstrated he did not
care. Boerjan, 436 S.W.3d at 311.

      B.     There is no evidence that Gonzalez-Flores was subjectively aware
             of an extreme degree of risk.
      Hernandez asserts there is evidence from which a reasonable jury could find
that Gonzalez-Flores was grossly negligent because a gun was left out on a table in
his backyard during a party where guests were drinking alcohol. We conclude the
evidence presented does not raise an issue of fact regarding whether Gonzalez-Flores
was subjectively aware of an extreme degree of risk.

      Gonzalez-Flores testified that he was aware alcohol was being consumed and
a gun was being discharged at the party. He agreed with general statements by
Hernandez’s counsel that “handling a weapon or a gun can be dangerous,” and that
“drinking alcohol and handling weapons can also be dangerous.” But he later
disagreed with counsel’s suggestion that “it’s not a good idea” to drink alcohol and
shoot a gun “where there are guests mingling around,” clarifying that “we weren’t
shooting . . . around the people there. We were shooting in the back.” Other
evidence in the summary judgment record confirms that guests were shooting the
gun at soda cans earlier in the evening and no one was hurt. In addition, Gonzalez-
Flores, Hernandez, and Gabino each testified in their depositions that although


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guests were drinking, no one was drunk or acting drunk. Hernandez said she never
felt unsafe at the get-together until Gabino accidentally shot her while retrieving his
gun. Considering this evidence in the light most favorable to Hernandez, we hold it
cannot support a finding that Gonzalez-Flores had actual, subjective awareness of
an extreme degree of risk.2

       Hernandez has not identified any analogous cases supporting her argument
that a landowner is grossly negligent if he knowingly permits guests to drink alcohol
on his property while any guns are accessible, and therefore he is liable if one guest
picks up a gun he brought and accidentally shoots another. We hold that an objective
Texan host, knowing only that guests are drinking and a gun is available for use, is
not aware that serious injury is likely to occur. See Boerjan, 436 S.W.3d at 311. We
need not decide how much more evidence of risk would be required to raise a fact
issue regarding gross negligence because the record here is clear that no one at the
party appeared intoxicated, the gun had been used safely by guests that evening, and
Hernandez herself did not feel unsafe.3

       On this record, the trial court did not err in granting no-evidence summary
judgment against Hernandez’s premises liability theory. We overrule Hernandez’s

       2
          According to Hernandez, the record also shows that Gonzalez-Flores was concerned
enough that he told his son to go inside the house when the gun came out. To the contrary,
Gonzalez-Flores testified in his deposition that it was Gabino who told his own son to go inside in
order to play with Gonzalez-Flores’s son, who was already inside.
       3
          Cf. Garcia v. Fifth Club, Inc., No. 03–03–00697–CV, 2005 WL 240425, at *6 (Tex.
App.—Austin Feb. 3, 2005, pet. denied) (mem. op.) (affirming summary judgment that club
serving alcohol was not grossly negligent in failing to change security policy in response to gun-
brandishing incident); Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 909 (Tex. App.—
Fort Worth 2001, no pet.) (analogizing gross negligence standard to Dram Shop Act standard of
whether person was “obviously intoxicated to the extent that he presented a clear danger to himself
and others”); Masso v. Neill, No. B14–86–455–CV, 1987 WL 12349, at *2 (Tex. App.—Houston
[14th Dist.] June 11, 1987, writ ref’d n.r.e.) (not designated for publication) (affirming directed
verdict that defendant was not grossly negligent in driving after consuming alcohol because there
was no evidence he was intoxicated).

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first issue.

III.   The trial court did not err in granting Gonzalez-Flores no-evidence
       summary judgment on Hernandez’s negligent activity theory.
       Hernandez argues the trial court erred in granting summary judgment to
Gonzalez-Flores on her negligent activity theory because Gonzalez-Flores hosted a
party combining alcohol and a gun. Gonzalez-Flores responds that he did not create
a dangerous situation and that he is not legally responsible as a social host for the
acts of Gabino.

       A.      A negligent activity theory requires evidence of contemporaneous
               injury by an ongoing activity.
       To recover on a negligent activity theory, a plaintiff must have been injured
by or as a contemporaneous result of an activity itself, not by a condition created by
that activity. Roye, 447 S.W.3d at 56–57. The distinction between negligent activity
and premises liability theories is sometimes unclear because “almost every artificial
condition can be said to have been created by an activity.” Keetch v. Kroger Co.,
845 S.W.2d 262, 264 (Tex. 1992). To support a negligent activity theory, the
plaintiff’s injury must be a result of an “ongoing activity” by the premises owner.
See id. (plaintiff who slipped and fell after employees sprayed water on plants was
injured as result of condition on premises, not by activity of spraying). Leaving a
potentially dangerous object unattended is not an ongoing activity. See Crooks, 138
S.W.3d at 639 (plaintiff’s injury resulting from explosion of unattended bonfire
could not support negligent activity theory); Pifer v. Muse, 984 S.W.2d 739, 742
(Tex. App.—Texarkana 1998, no pet.) (leaving a lighted candle and loaded gun in
home was not an ongoing activity); Harrod v. Grider, 701 S.W.2d 937, 938 (Tex.
App.—Beaumont 1985, no writ) (failing to properly supervise and secure a BB gun
was not evidence of active negligence).


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      B.     The record does not show an actionable ongoing activity by
             Gonzalez-Flores.
      According to Hernandez, the negligent activity was the ongoing act of leaving
the gun on the table and not securing it. We conclude that leaving the gun on the
table during the gathering cannot support a negligent activity theory because it was
not an ongoing activity by Gonzalez-Flores. See Keetch, 845 S.W.2d at 264; Crooks,
138 S.W.3d at 639; Pifer, 984 S.W.2d at 742; Harrod, 701 S.W.2d at 938.

      At some point, Gabino’s gun was left unattended on the table; the record does
not reflect who touched it last. Hernandez, Junior, and Gabino were standing around
the table with the gun on it when Gabino picked it up and accidentally shot
Hernandez in the ankle. Gonzalez-Flores was not near the table, and he had his back
to them when Gabino accidentally shot Hernandez. This evidence cannot support
Hernandez’s negligent activity theory because it does not show any ongoing activity
by Gonzalez-Flores.

      To the extent Hernandez is arguing that the ongoing activity was Gonzalez-
Flores’s hosting of a party at which he permitted guests to drink and use a gun,
Gonzalez-Flores had no duty to Hernandez as a social host to prevent a guest from
injuring her. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993) (no common-
law duty for social host who merely makes alcohol available); Gatten v. McCarley,
391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.) (social hosts had no legal
duty to control guest who assaulted another guest). Therefore, the trial court did not
err in granting no-evidence summary judgment against Hernandez’s negligent
activity theory. We overrule Hernandez’s second issue.




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                                  CONCLUSION

      Having overruled both of Hernandez’s issues on appeal, we affirm the trial
court’s judgment.




                                     /s/    J. Brett Busby
                                            Justice



Panel consists of Justices Boyce, Busby, and Wise.




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