                                   NO. 07-02-0449-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JUNE 10, 2003

                          ______________________________


                            KATHY HOUSTON, APPELLANT

                                            V.

                   NORTHWEST VILLAGE, LTD. AND MEDLOCK
              SOUTHWEST MANAGEMENT CORPORATION, APPELLEES


                        _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 88,105-E; HONORABLE ABE LOPEZ, JUDGE

                          _______________________________

Before JOHNSON, C.J. and REAVIS and CAMPBELL, JJ.


                                        OPINION


         Appellant Kathy Houston appeals the summary judgment granted by the trial court

in favor of appellees Northwest Village, Ltd. and Medlock Southwest Management

Corporation. We will reverse the summary judgment and remand the case to the trial

court.
       Appellees are the owners of Northwest Village Apartments in Amarillo. Houston’s

suit claims that she suffered personal injury when she slipped and fell on ice while

delivering the Amarillo newspaper to residents of the apartments.1 The summary judgment

evidence shows that the apartments are contained in 10 buildings on the apartment

premises. At about 6:30 on the morning of February 1, 1999, Houston drove her car onto

the premises, then walked to deliver the papers to the doorways of individual apartments.

The apartments did not have a newspaper vending machine. Snow had been on the

ground for two days. On those two previous days, apartment maintenance personnel had

cleared the snow off the apartment sidewalks and treated them with pellets of a chemical

melting agent. They had not yet arrived for work at the time of Houston’s injury, so the

sidewalks had received no attention that morning.


       Houston testified at her deposition that she normally did not walk on the sidewalks

as she delivered the papers but was attracted to them that morning because they were

cleared of snow. She noticed, though, that there was “shiny black ice” on the sidewalks.

She fell, fracturing her ankle.


       Appellees’ resident apartment manager testified on deposition that she had not yet

been outside her apartment at the time of Houston’s fall, and was not aware of the

condition of the sidewalks. She also testified that she saw no ice on the sidewalks when

she went outside after being notified of the incident; that she gave instructions for the


       1
        In her petition, Houston alleged that appellees were negligent in failing to warn her
of the unsafe condition; failing to remove the ice causing her to slip and fall; and failing to
discover and remove the ice within a reasonable time.

                                              2
melting agent to be applied to the sidewalks when maintenance personnel arrived; and

that maintenance personnel later reported to her that they had encountered some frozen

conditions on the premises.


       Appellees filed a traditional motion for summary judgment, asserting that Houston

was on the premises as a licensee, and that her suit therefore could not succeed because

(1) appellees had no actual knowledge of the condition of the sidewalks at the time of

Houston’s injury, while (2) Houston did have actual knowledge of their icy condition.

Houston’s response argued that she was an invitee on the premises.


       Appellees, as movants, have the burden of showing that there are no genuine

issues of material fact and that they are entitled to judgment as a matter of law. Under the

well-established standards for review of a summary judgment, we take evidence favorable

to the non-movant as true, and we indulge every reasonable inference in favor of the non-

movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Summary judgment for a defendant is proper if, as a matter of law, the plaintiff cannot

prevail on the claims. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995).


       As framed by the parties, the sole issue on appeal is that of Houston’s status on the

premises as licensee or invitee. Appellees’ motion for summary judgment was based on

the proposition that Houston’s status depends entirely on her relationship with appellees.

The proposition is not correct.




                                             3
       Citing the test set forth in Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (1938),

and focusing only on Houston’s relationship with appellees, appellees argue that

Houston’s status on the premises was that of a licensee because she had no business or

other relationship inuring to the benefit of appellees from which the invitation required for

invitee status can be implied. Cowart, 131 Tex. at 40, 111 S.W.2d at 1107. Appellees

emphasize Houston’s testimony that she had no agreement with the apartment

management concerning her delivery of papers, but had agreements only with individual

tenants, and argue that Houston’s deliveries provided no economic benefit to appellees.


       Even assuming, arguendo, that appellees conclusively established that Houston’s

business of delivering newspapers to their tenants did not confer a sufficient benefit on

appellees to imply that she enjoyed an invitation from appellees to enter the premises, that

conclusion would not end our inquiry, because appellees’ duty to Houston was not

determined solely by the nature of her relationship with appellees.


       In Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), the social guest of

an apartment tenant was injured when she fell on hallway stairs in the apartment building.

The stairway was dark because apartment employees had failed to adjust the automatic

lighting. The Texas Supreme Court held that, with respect to the condition of parts of the

premises over which a landlord retains control, the duty owed by the landlord to an invitee

of a tenant is determined under the standard stated in Sections 360 and 361 of the




                                             4
Restatement (Second) of Torts.2 Id. at 514-15. See also Johnson County Sheriff’s Posse,

Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Cadenhead v. Hatcher, 13. S.W.3d 861,

863 (Tex.App.--Ft. Worth 2000, no pet. h.).


       Parker focuses not on the relationship between the landlord and the one entering

the premises, but on that person’s relationship with the tenant.3 Here, indulging every

reasonable inference in Houston’s favor, there is at the least sufficient summary judgment

evidence to raise an issue of fact regarding Houston’s status on the premises.4 It is


       2
           Section 361 states:

A possessor of land who leases a part thereof and retains in his own control any other part
which is necessary to the safe use of the leased part, is subject to liability to his lessee and
others lawfully upon the land with the consent of the lessee or a sublessee for physical
harm caused by a dangerous condition upon that part of the land retained in the lessor’s
control, if the lessor by the exercise of reasonable care (a) could have discovered the
condition and the risk involved, and (b) could have made the condition safe.
       3
        Note this statement from comment c to Section 360 of the Restatement, which is
quoted in full in Parker: “The privilege of the visitor is not based, as is that of the lessor’s
own invitee or licensee, upon the consent given upon the occasion of the particular visit,
but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under
his lease to use the part of the land within the control of the lessor not only for himself, but
also for the purpose of receiving any persons whom he chooses to admit.” Parker, 565
S.W.2d at 515.
       4
        Although the Parker opinion says that the Court then limited its holding to invitees
of tenants, Sections 360 and 361 of the Restatement would impose liability to a broader
category of persons, including “others lawfully upon the land with the consent of the lessee
or a sublessee.” See also Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993)
(discussion to effect that duties to tenant owed by landlord who retains control of portion
of premises are owed also to employee of tenant); Cadenhead, 13 S.W.3d at 863 (duty of
landlord to tenant with respect to condition of portion of premises still under landlord’s
control owed also to “those who are on the premises with the tenant’s consent”); Comment
c to Restatement Section 360 (quoted in Parker, 565 S.W.2d at 515) (“a lessor may be
liable to an invitee or even to a licensee of the lessee”). Because we find summary
judgment evidence sufficient to raise an issue that Houston was the invitee of appellees’

                                               5
undisputed that Houston was present on the Northwest Village Apartments premises at the

time of her fall for the purpose of carrying out her business arrangement with residents to

deliver newspapers to their apartments.5 Her presence on the premises enabled residents

to receive the newspapers for which they had contracted, and thus was of sufficient direct

benefit to the resident-customers to imply those residents’ invitation of her onto the

premises for that purpose.6 Cowart, 131 Tex. at 40, 111 S.W.2d at 1107.


       Too, the summary judgment evidence establishes that appellees owned and

managed the apartments. They exercised control over the maintenance of some areas of

the apartment complex, including the sidewalks, through their resident manager.

Apartment maintenance personnel were responsible for clearing the sidewalks of snow,

and the apartment resident manager directed and supervised them in that task.




tenants who were her customers, we need not consider here the nature of the duty
appellees might owe to persons occupying a lesser status.
       5
         There is a factual dispute as to whether Houston delivered a paper to the resident
apartment manager. The manager’s deposition was taken in October 2001; she testified
that she did not then take the newspaper. Houston testified, though, that the manager (at
her apartment, not the manager’s office) was among her customers at the time of her
injury, and the summary judgment evidence contains a computer record of an Amarillo
newspaper subscription then in effect in the manager’s name at that address. Although it
is not necessary to our decision, for purposes of review of a summary judgment, we
resolve the disputed issue of the resident manager’s subscription to the newspaper in
Houston’s favor. For purposes of this appeal, then, we consider that Houston’s customers
at the time of her injury included appellees’ manager.
       6
         The Restatement uses the term “business visitor,” a person invited to enter the land
for a purpose directly or indirectly connected with business dealings with the possessor
of the land (or, in this case, with the possessor’s tenants). See Restatement (Second) of
Torts § 332 (1965); Prestwood v. Taylor, 728 S.W.2d 455, 458-59 (Tex.App.–Austin 1987,
writ ref’d n.r.e.).

                                             6
       We turn, then, to the specific grounds asserted by appellees in their motion for

summary judgment. Appellees first pointed to the evidence, which Houston did not

dispute, that appellees had no actual knowledge of the icy condition of the sidewalks prior

to Houston’s fall. Recall that the apartment maintenance personnel had not yet arrived for

work, and that the resident manager had not yet been outside her apartment, at the time

of Houston’s fall. But a landlord’s duties to the invitees of its tenants include the duty to

exercise reasonable care to discover unreasonably dangerous conditions on those parts

of the premises over which the landlord retains control. Cadenhead, 13 S.W.3d at 863;

see Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Appellees’ lack of actual

knowledge of the condition of the sidewalks, then, does not support summary judgment in

their favor.


       Secondly, and similarly, appellees’ motion for summary judgment pointed to the

evidence that Houston had actual knowledge of the icy conditions as a bar to her recovery.

Houston testified that she saw “shiny black ice” on the sidewalks before her fall. She also

testified that the sidewalks had not been cleared of snow when she delivered papers the

two previous mornings at about the same time, leading to a conclusion that she was aware

the maintenance personnel would not yet have worked on the sidewalks at that time of

day. The point might be well taken if we agreed with appellees that, as a matter of law,

they owed Houston only the duties owed a licensee, see Wal-Mart Stores, Inc. v. Miller,

46 Tex. Sup. Ct. J. 530, 2003 Tex. LEXIS 31 (March 27, 2003) (per curiam), but because

we do not, her actual knowledge of the dangerous conditions does not necessarily prohibit

her recovery against appellees. State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 237 (Tex. 1992); Parker, 565 S.W.2d at 516.

                                             7
      Appellees thus having failed to establish their entitlement to judgment as a matter

of law, we reverse the summary judgment and remand the case to the trial court.


                                               James T. Campbell
                                                   Justice




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