### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 19

- 00557

- CV

Julio Gonzales , Appellant

v. Austowers LLC d/b/a Crossing Point Shopping Center , Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D

- 1

- GN

- 17

- 006811 , THE HONORABLE J. DA V ID PHILLIPS , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

In this pr emises

- l iability case , the trial court grant ed summa ry judgment in
favor of Austowers, LLC d/ b/a C rossing Point Shopping Center (the Shopping Center) on
Julio Gonzales ’ s claim s
. In two issues, Gon zales contends t hat the trial court erred in granting summary judgment because there were fact issue s as t o his status as a licensee on the Shopping
Center ’ s premises and its breach of the dut y owed to hi m as a licens ee
. For the foll o w ing reasons, we affirm the trial court ’ s order.

BACKGROUND
Gonzales sued the Shopping Center to recover damages for personal inj uries that
he sustained on July 6, 2017 , when he allegedly fell on the Shopping Center ’ s property around2 11:00 p.m

. 1 Gon z ales all eged in his ame n d ed petition that : (i) he was a t ruck driver en route to
deliver merch an dise to a Sam ’ s Who l e sale Club that is located near th e Shopping Center ; (i i ) he parked his truc k in the Shopping Cen ter ’ s parking lot ; (i i i) as he was walking , he decid ed to cross
what he thought was a street and notice d a “ narrow cement barrier at ground l evel ” ; (iv) “ [i]n the artificial lighting that night it seemed that the street was flush or close to flush with the cement
barrier ” ; and ( v) “ when [he ] stepp e d o ver the cement barrier he fell approximately 37 inch e s to
the pavem ent below frac turing his hip

. ” The Shop pin g Center filed a traditional and no

- evidence motion for summary judgment on the g roun ds that ther e was n o evid en ce that it was negligent or gross ly negligent either in terms of any activity or the creation or maint enance of a premises defect ; that the
accid ent di d not occur on its property ; and that even if it did, Gonzales was a trespasser who did

no t produ ce any e vi dence that the Shopping C e nter was “ negligen t, much less negligent in a wanton, willful, or gr ossly ne gligent fash ion in the creation of the premises

. ” The S hopping
Ce nter ’ s supporting eviden ce included a transcript of Gonzales ’ s de positi on and an aff ida vit o f
th e operations mana g er of the entity managing const ruction of the Shopping Center. The operations manager averred that at the time of the incident, the Shopping Center “ was not open
and un occupied , ” “ there were at least three ‘ C onst ruction Entran ce O nly ’ sig ns at each of th e

entr ances/exits to the f acility, ” and “ the parking l ot lights only became operational in Au gust
of 2017 becau se the final ele ctrical inspection of Building 1 passed on August 17, 2017

. ”
Gonzales filed a respo nse to the motion with a supporting affida v it and
attachments. In hi s response, h e contended that there was a fact issue whether he was prohibited

1 Gonz ales also sued two ot her entitie s, but he non

- suited h i s c lai ms against those entities in t he trial court

.3 from the Shopping Center ’ s property , that he “ was at leas t a l icens ee , ” and that the dangerous
condition was an “ unguarded retaining wall ” that wa s in vi ol ati on of a local building code and not adequately illum inated

. I n his affi davit, Gonzales s wore to what happened when he fell :
As I was on my way back toward my r ig it was about 11 :00 p.m. so it was dark. At one point I found myself in an area where ther e s eemed to be a concrete landscaping border between one parking lot and another. I approached the adjacent parking lot b y walking toward this concrete landscaping border. In the available light the adjacent parking lot seemed to be almost flush wit h the pa rking lot I was in. I stepped over the concrete border thinking I was going to step onto the asphalt on the opposing s ide. Instead, I fell approximately 37 ” onto the asphalt below. I know it was 37 ” beca use I measured it later on. I came to rea l ize aft er my fall that what I thought was a concrete landscaping border was, in fact, the top of a retaining wall separating o ne parking lot from another.

He also swore that he did not see “ signs warning of the dr op o ff from the retaining w all ” or

“ restri c ting or prohibiting entry in to an y of the areas [he] walked across including the area where
he fell. ” Gonzales attac hed “ a photograph showing the retaining wall [he] fell from and the area where [he] fell onto th e a s phal t, ” “ a Google Earth image which sh o ws the retaining wall from
which [he] fell , ” and “ a photo graph taken shortly after [his ] fall s howing what the top of the retaining wall looked like from [his] pers pective d uring daylig ht

. ”
The S hopping Center filed a reply , arguing that Gonz ales ’ s af f id avit wa s a sham
affida vit that the trial court s hould ig nore b ecause his affidavit identifies a location where his injury occur red that is different from the l oca tion s in his deposition and d is covery responses , which were also “ compl etely different ” from each oth er
. Without speci fying the grounds for its ruling , t he trial court gran te d the Shopping Center ’ s traditional and no

- ev idence motion for

summary judgment . T his app eal followed.4 A N ALYSIS Standard of Review
We review su mmary judgment s de no vo. Provident Life & Accident Ins. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). If the trial court does not specify the grounds for its summary judgment, we must affirm t h e summary judgment “ if any of the theories presented to the trial court and pre served for appellate review are meritorious. ” Id. at 216

. When a party files both
traditional and no

- evidence motions, we first review the trial court ’ s decision u nder the

no - evidence standard. See Tex. R. Civ. P. 166a(i); Merriman v. XTO Energy, Inc. , 407 S. W.3d 244 , 248 (Tex. 2013). A movant seeking a no

- evidence summary ju d gment must assert that there is no evidence to support an essential element of the nonmovant ’ s claim on which the no nmovant would have the burden of proof at trial. See T ex . R. C iv

. P. 166a(i); Boer jan v. Rodriguez , 436 S.W.3d 307, 310 (Tex. 2014) ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2 009)

. Once the motion is filed, the burden shifts to the nonmovan t to present evidence raising a genuine is sue of material fact as t o each element c hallenged in the motion. Mack Truck s, Inc.

v. Tamez , 206 S.W.3d 572, 5 82 (Tex. 2006). In our r eview from summary judgment, we
consider the evidence in the light mo st favorable to the non movant, crediting e videnc e a reasonable jury could c redit and dis reg arding contrary evi dence and inferences unless a

re asonable jur y could not

. Merriman , 407 S.W.3d at 248

. “ No

- evidence summary judgment is
i mproper when the nonmova nt ’ s evidence amounts to ‘ more than a scin tilla of probative
evidence to ra ise a genuine is sue of material fact. ’ ” Boerjan , 436 S.W.3d at 310 (quoting Smith
v. O ’ Donnell , 288 S.W.3d 417, 424 (Tex. 2009) )

.5 Did Gonzales present evidence that create d a fact issue ?
P remises liability is a f orm of negligence in whi ch the d uty owed by the
land owne r d epend s on the status of the person injured on his premises

. See United Scaffol ding,
Inc. v. Levine , 537 S.W.3d 463, 474 (Tex. 2017 ); see also Greater Hou s

. Transp. Co. v. Phillips , 801 S.W.2d 5 23, 525 (Tex. 1990) (exp laining tha t “ legal dut y owed by on e person to another ” is
element of negligence and that existence of duty is question of l aw )

. A p erson has the status of a
licensee i f he “ enters and rem ains on land with the owner ’ s consent and for the licensee ’ s own convenience, or on business with some one other than the owner ” as compared with the status of

a trespasser who e nter s “ another ’ s property wit hout lawful authority, permission, or invitation. ” 2 Mayer v. Willowb rook Pl aza , Ltd. P’ship , 278 S.W.3d 90 1, 910 (Tex. A pp.

— Hou ston [14 th Dist.] 2009, no pet.). A landowner owes a licensee and a trespasser the duty “ not to cause injury

w illfully, wantonly, or through gross negligence. ” Id. In addition , a lan d owner owes a l icensee
the duty t o warn or make sa fe a dan gerous con d it ion unknown to the licen see when the
lan downer has actual knowledge of the condition

. I d

. Among its g round s for no - evid ence summary judgment , the S hoppi ng Center argued that even if the accid ent occur r ed on its property , Gonzales was a trespasser and t hat he did not produce an y evi dence that the Shoppin g Center was “ negligen t, much less negligent in a wanton, willful, or gr ossly ne gligent fash ion in the c reation of the premises

. ” 3 In response ,

2 Gon z ales concedes that he was not an invit ee a t the t ime of his injury.

3 Be ca u se we affirm the summary judgment on a dif feren t ground, we do not address th e S hop pin g Center ’ s ground that Gonza les w as n ot injured on its property and its argument that his affida vit must be ignored because it was a sham affidavit

. See Provident Li fe & Accident Ins. v. Knott , 128 S.W.3d 21 1, 21 6 (Tex. 2003) ; see also Merriman v. XTO Ene rgy, Inc. , 407 S.W.3d 244 , 248 ( T ex. 2013) ( “ [I] f the non

- movant fails to produce legally s ufficient evidence to meet his burden as to the no

- evidence motion, there is no need to analyze whether the m ovant satisfied its6 G onzal es provided his affidavit with attac hm ents, includin g the photo graph “ of the a rea in which
he fell , ” and argued that his evidence raised a fact issue as to his status as a licensee on the Shopping Center ’ s prem ises and that , as a licens ee, the Sh opping Cent er had a duty to warn and protect him from the “ dan gerous condition ” of “ the dr op from the retaining wall , ” which was
known to the Shopping Center but unknown to hi m. On appeal, Go n zales asserts that h is “ ex act status ” on the Shopping Center ’ s
pre mise s was that of a “ gratuitous licensee , ” a p er son who i s on the premises solely fo r his own purpose in which the landowner has no interest, either business or social, and “ to whom the priv ile ge of entering is extended as a mere favor b y express consent or by g eneral custom. ” See
Gonzalez v. Broussard , 274 S.W .2d 737, 73 8 (Tex. App.

— San Antonio 1954, writ ref ’ d n.r.e.)

. Gonzalez , h o wever, did not make this argument to the tria l court in response to the mo t ion for

summary judgmen t

. See Tex. R. Civ. P. 16 6 a (c) ( “ Issues n ot expressly pre sented to the trial

court by written motion, answer or other response sh all not be considered o n a ppeal as grounds
for reversal. ” ). Further, we cannot conclude that the evidence raised a genuine is sue of material
fact tha t the Shopping Cen ter gave its con sent

— either “ as a mere fa vor by ex press consent or b y
ge nera l custom ”

— for Gonzales t o be on the S hopping Center ’s premises at 11:00 p.m

. and
before the sh ops ha d been opened for business

. See Boerj an , 436 S.W.3d at 310 (re quiring

nonmovant ’ s evidence to be more than scintilla of probative evidence to rais e genuine issue of
material fact ). Although Gon z ales testified in his affidavit t hat there were “ no signs that [he] saw restricting or prohib iting entry into any of the areas [he] wal ked across including the area where

burden under the tradi tional motion

. ” ( citing Ford Motor Co. v. Ridg w ay , 135 S.W.3d 598, 600 (Tex. 2004) ) ).7 [he] fel l ” and in his deposition th a t th e Shopping Center appeared to be “ already built ” and that he did not see any con struction , he also tes tified that the building “ wasn ’ t ope n yet , ” th at no shops were open, and that “ [t]hey were , like, fixing them

. ” W e conclu de that Gonzales did not

cr e ate a fact issue as to his status as a licensee and that he was a trespasser on the Sho pping
Ce nter ’ s prem ises

. Se e Mayer , 278 S.W.3d at 910 (requir ing conse nt or p ermission from
land owner to have status of licens ee)

. Becau se he was a trespasser , it wa s Gonzales ’ s burden to present evidence that the Shopping Center was neg l igent in a wan ton, willful, or grossly negligent fashion

. See id. ; see also Mack Trucks , 206 S.W.3d at 5 82 (r equiring nonmovant to present evidence raisi ng fact
issue as to each chal l enged element in no - ev idence summary judg ment motion )

. “ G ross negligence involves two components: (1 ) viewed objectively from the actor ’ s s tandpoint, the act
or omission complained of must involve an extreme degree of risk, c onsidering the probability

an d magnitude of the potential harm to others; and (2) the actor must have actual, subjective

awareness of the risk involved, but nevertheless proceed in conscious indifferen ce to the r ights, safety, or welfare of others. ” Lee L ewis Constr., Inc. v. Harriso n , 70 S.W.3d 778, 785 (Tex.
2 001) ; see U

- Haul Int ’ l, Inc. v. Waldrip , 380 S.W.3d 118 , 141 (Tex. 2012) (e xpl aining that

“ party cannot be liabl e f or gr oss negligence when it actually a n d sub jectively believes that circumstances p ose no risk to the injured pa r ty, even if the y are wrong ” ) . Willful and wanton negligence also has a subjective component

. See Turner v. Franklin , 325 S.W.3d 771, 785

– 8 6 (Tex. App.

— Dallas 2010 , pet . denied) (de scribing “ subjective element of willful and wanton negligence ” and equati n g “ willful and wanto n ” with gro ss negligence )

. Gonzales has not iden tif ied any evid ence that would raise a fact issue about the Shopping C en ter ’ s actions or omiss ion s that when viewed o bjec tiv ely involved an extreme8 degree o f risk or its proceed ing with actual, subjective awareness of the risk involved and
with conscious indifferen ce to the rights , sa fety, or wel fare of others

. See Lee Lewis Constr. , 70 S.W.3d at 785 (stating that “ ‘ extreme risk ’ [] mean s not a remote possibi lity of injury or even a high probability of minor harm, but r ather the likelihood of serious injury to the plaintiff ” and
that “ ‘ actual aware ness ’ [ ] means that the defen dant knew about the peri l, but its acts or
omissions demonstrated that it did not care ” ) ; Turner , 325 S.W.3d at 785

– 86 (describing

“ subjective element of willful and wanton negligence ” and affi rming no

- evidence summary judgment)

. Thus, we c onclu de that th e trial court did not err i n granting summ ary ju dgment in
fa vor of the Sh opping C enter

.

CONCLUSION
For these reas o ns , we overrule Gonzales ’ s issues and affirm the trial court ’ s order granting summary judgment in favor of the Sho pping Cente r
.

_______ ______________ _

____________________ Melissa Goodwin , Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: August 6, 20 2 1