### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00670- CV

Sus an Aranda, App ellant

v. The Will ie Lim ited P artner ship d/b /a Antler M ini S torage , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0052 5, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

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

Susan Ara

nda appea ls th e t ri al court’s final summary judgme nt in favor of The Wil lie L imited Partnership d/b/a Antler Mini Storag e (Antler) on her premises- l i ab i l ity and
neg lige nce per se claims seeking damag es for persona l injuries she suffe red when s h e al leg edly tripped and fell on an unsafe step into a storag e unit. She contends that materia l fac t issues exis t on the challeng ed elements of (1) Antler’s actua l or constructive knowledg e of the unsafe conditions, (2) an unrea sonable risk of harm posed by the conditions, (3) Antler’s failure to exercise rea sonable

car e in re ducing or eliminating the risk, and (4) the proxi mate cause of her injuries. See H enke l v.
Norman , 441 S.W .3d 249, 251–52 (Tex. 2014) (per curia m) (listing elements of premises-liability claim that invitee must prove) . We will affirm the trial c ourt’s summary judgme nt.BACK GR OUND Ara nda filed a lawsuit ag ainst Antler all egi n g that she sustained serious persona l injuries when she tripped and fell on an unmarke d “lip” or “ledg e” at the entra nce to the storag e unit she was renting from An t ler. Her petition asser ted cause s of action in neg lige nce and neg lige nce per se. Specifica lly , she alleg ed that the step and entra nce into the storag e unit failed to comply with applicable building codes and was poorly lit, cre ating an un re as o n able risk of harm to business invitees such as herself, a nd that Antler fa iled to exercise ordina ry car e in reduc ing or eliminating the risk of ha

rm, proxim ately

causing her injuries. After a sufficie nt time for discovery had elapse d, Antler filed a combined traditional

a n d n o - e v id e n c e mo ti o n f

o r s u mm a r y ju d g me n t a s s e r

ti n g , a mo n g o th e r c o n te n ti o n s , th a t A r a n d a c o u ld
p r o d u c e n o e v id e n c e s u

p p o r ti n g f o u r e l e m e n t s o f h e r p r e mi s e s - li a

b il it y c la im a n d th e c a u s a ti o n e le me n t of her neg lige nce per se claim. See Missouri Pac. R.R. Co. v. American Statesman , 552 S.W .2d 99, 103 (Tex. 1977) (finding of neg lige nce per se require s showing that such neg lige nce was proxi mate

cause of damag es). Ara

nda filed a response , attaching summary -judg ment evidenc e in the form of portions of her de position t estimony and that of ot her witnesses as we ll as an expert re port from a profe ssional eng ineer . The trial c ourt g rante d Antler’s motion, and Ar anda a ppeals.

ANALYSIS
I n her appellant’s brief, Aranda ci t es evidenc e attached to her response to Antler’s
summary -judg ment motion in s upport of ea ch of the four challeng ed elements of her claims. The trial court did not specify any particula r g round on which it relied i n g ranting Antler’s summary judgme nt motion. Acc ording ly , we will aff irm the j udg ment on any

g round that was prese nted i n
2Antler’s moti on that is meritorious and preserve d for r eview. State Farm Fire & Cas. Co. v. S.S. ,

8 5 8 S. W. 2 d 3 7 4 , 3 8 0 ( T e x. 1 9 9 3 ) ; s e e a ls o T e x. R. Ci v . P. 1 6 6 a ( c ) ( s u mm a r y ju d g me n t is p r o p e r w h e n there are no disputed issues of materia l fac t and movant is entitled to judgment a s matter of la w).
We will beg in by revi ew i n g t h e evidenc e in support of the challeng ed element of

causa tion, the most hotly disputed issue on appea l. To suppo rt t h at el ement, Ara nda cites to the following testimony

in her de position:
I tripped on a le dg e. * * *
I was c arr y ing a box about this lar g e [i ndicating ] and as I enter ed the storag e room, I didn’t know there was an edg e there and I hit it with my rig ht foot and tripped into the storag e room with the box in my hand, and I turned to put the box down beca use the fall was g oing to be so hard that I wanted to protec t my head and so I turned and just put the box into a baker ’s rac k that had alre ady been unpacke d and I went down on my left shoulder a

nd rolled down the e mbankment. * * *
I was walking in there

. I tripped—my rig ht foot hit this ledg e rig ht there [i ndicating on photogr aph]. That was the trip rig ht there and I was try ing to reg ain some sort of balanc e, find something to hold onto, beca use I knew I was g oing down hard and the baker ’s ra ck wa s there.

Howeve r, later in the same deposition on cross-e x amination, Ara nda conce ded that she did not know
at the time of her fall what cause d it and only came to the conclusion that she must have tripped on the ledg e upon later

inspection of the stora g e unit a couple months later:
Q: Do y ou believe it’s i m p o rt an t to tell somebody if there ’s a dang erous condition on their premises? [Objection omit ted.]
3A: I do, but I didn’t know how or why I fell. I didn’t know. I t was dar

k. Q: At the time y ou didn’t know what y ou fell on? A: No. Q: When did y ou lear n what y ou fell on? A: When I came back a nd took those pictures. * * * Q: I s that when y ou lear ned that ther e wa s a step ther e? A: The first time afte r – the first time I we n t t o t h e storag e unit afte r my first surg ery , which wa s J anuar y 21st, 2012, at the first time I was a ble to g et up and out and into a car and g o somewher e, we went back – my sister and I went back to the storag e unit – I believe my ex-husband was with us too and

– Q: That’s Rober

t? A: Yes, Ro b er t Ar anda. And we looked and said “Oh, my g osh. No wonder y ou fell.”

Whil e conflicting testimony from the same witness g ener ally cre ates a fac t issue for the factfinder to resolv e, s ee R a n d a l l v. Dallas Power & Light Co. , 752 S.W .2d 4, 5 (Tex. 1988), Ara nda’s testimony on cross-e x amination elabor ates upon rathe r than confli cts with her ear lier testimony by clar ify ing that she did not know on the date in question what cause d her to trip and only

came to the conclusion that she must have tripped on the ledg e months after the incident when she
returne d and noticed the ledg e for the first time. Apar t from her own specula tion afte r the fac t that she must have tripped on the ledg e, there is no direc t evidenc e that she did indeed trip on it. There is no evidenc e that Ara

nda or any of the friends acc ompany ing her on the date in question inspected

4t he storag e unit’s entra nce are a immediately afte r her fall. There wer e no witnesses t o Ar an d a’ s tripping e x cept Ar anda he rself, w ho testified that she did not know on wha t she had tripped.

Fr om the s cant circumstantial evidence in the summary -judg ment rec ord, t here are any number of inferen ce s t h at are equally as probable as the infere nce that Ara nda tripped on the ledg e (for instance, she could have tripped on a box or other persona l item temporar ily place d at the
entra nce to the unit by one of her friends)

. Ara nda’s specula tion well afte r the incident that she fell beca use of a condit i o n o n t h e p remises does not rise above a scintilla of evidenc e, in the absenc e of other evidenc e support i ng her causa tion theory

. See Hall v. Ralph & Kacoo’s of Lufkin, Tex. , N o . 1 2

- 1 4

- 0 0 0 1 0

- CV , 2 0 1 4 WL 4 1 0 4 1 6 4 , a t * 3 ( T e x. A

p p . — T y le r A u g . 2 0 , 2 0 1 4 , n o p e t. ) ( me m. o p . ) (af firming no-evide nce summary judgme nt wher e plaintiff testified that sh e d i d n ot know what had cause d her to fall, no one per sonally witnessed fall, and witnesses could only specula te about what cause d plaintiff’s fall); S w ee t v. Flow Force Plumbing, LLC , No. 05-12-01688- CV, 2014 WL 1921232, at *2 (Tex. App.—Dallas May 13, 2014, no pet.) (mem. op.) (af firming noev i d en ce s ummary judgme nt on element of causa tion wher e plaintiff testified that he did not fee l
any pain i n foot while s hower ing in morning wh en h e al l ege d ly cut hi s foot on scre w, di d not see

scre w t h er e u n t i l next day , and noticed no blood until end of day , beca use such circ umstantial evidenc e could gi v e ri se to number of infere nces and jury would have to specula te); Hanson v. Grey star Dev

. & Constr., LP , 317 S.W .3d 850, 853–54 (Tex. App.—For t Worth 2010, pet. denied) (holding that expert’s simple ipse dix it is insufficient to establish matter or raise fac t issue to defe at
summary judgme nt when rec ord is devoid of direc t or circ umstantial evid en ce or any rea sonable infere nces from summary -judg ment evidenc e about how or w h y p la in ti f f f e ll ) ; H o pper v. J.C. Penne

y

5Co. , 371 S.W .2d 750, 752 (Tex. Civ. App.—For t Worth 1963, writ ref

’d n.r.e.) (af

firming direc ted verdic t wher e plaintiff admitted that she did not know what cause d her to fall down s t ai rs and could only reme mber rea ching for handra il one moment and then tumbling down stairs, and no one per sonally

witnessed plaintiff’ s fall).
To cre ate a

materia l fac t issue on causa tion, Aranda also relies on the expert repor t of a profe ssional eng ineer , who opined that Ara nda’s fall and injuries “we re cause d by violation of illumi nation, riser heig ht, trea d depth, and riser heig ht dif fer ence s require d by the building codes adopted in to law.” The expert explained the fac tual backg round of his opinion: “We understand that

. . . Ara nda stepped out of the open door of [t he] storag e unit [] onto the concr ete trea d, fell on to the asphalt paveme nt and was sever ely injured.” We conclude that this repor t is al s o insufficient to

cre ate a materia l issue of fac t on causa tion. First, as pointed out by Antler, the facts on whic h the expert relies are opposite to those testified to by Ara nda: she claims to have tr i p p ed o n t he ledg e while walking into t h e s t o ra ge unit; the expert explains that she tripped while stepping out of the

u n it

. M o r e im

p o r ta n tl y , th e r e is n o e v id e n c e th a t th e e xp e r

t w it n e s s e d th e in c id e n t, a

n d h is c o n c lu s io n
t h at Ara nda’s fall was cause d by the building-c ode violations is not supported by any fac ts bu t is mere ly a conclusory statement. See Brownlee v. Brownlee , 665 S.W .2d 111, 112 (Tex. 1984) (holding that aff

idavits consisting only of conclusions are insufficient to raise i s s ue of fac t); Rizkallah v. Conner , 952 S.W .2d 580, 587–88 (Tex. App.—Houston [1st Dist.] 1997, no writ) (explaining that conclusory statement in aff idavit that does not provide underly ing fac ts to support conclusion is not proper summary -judg ment proof)

. An expert opinion must be supported by fac ts in evidenc e, not conjec ture. See Marathon Corp. v. Pitzner , 106 S.W .3d 724, 729 (Tex. 2003) (per

6curia m). Whil e the building-c ode violations may constitute negli gen ce p er se, Ara nda must still establish that those violations caused her injury

. See id. at 7 2 8

– 29 (holding that code violation, without more, did not prove that premises defe ct cause d plaintiff’s fall); Ham v. Equity Residential Prop. Mgmt. Servs. Corp. , 315 S.W .3d 627, 633 n.2 (Tex. App.—Dallas 2010, pet. denied) (holding that code violations wou l d n o t b e evidenc e that condition of premises cause d plaintiff’s injury);
McD aniel v. Continental Apts. Joint V entur e , 887 S.W .2d 167, 172 (Tex. App.—Dallas 1994, writ denied) (holding that neg lige nce p er s e b y co d e violation g oes only to owner ’s duty , not to proxi mate ca

use). Whil e we must view the evidenc e in the light most favor ab l e t o Ar anda, see King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 750 (Tex. 2003), the circ umstances and evidenc e in this

rec ord could g ive rise to any number of infere nces, none more probable than another

. See Marathon Corp. , 106 S.W .3d at 729. “‘I n case s with only slight circ umstantial evidenc e, something else must be found in the rec ord to c orrobor ate the probability of the fac t’s exis tence or non-existence.’” Id. (quoting Lo z a n o v. L o z a n o , 52 S.W .3d 141, 148 (Tex. 2001)). Such evidenc e is lacking in this

rec ord. The evidenc e conce rning the cause in fac t of Ara nda’s fall and injuries amounts to no more than a scintilla, and a no-evide nce summary judgme nt on the element of causa tion was there fore
p r o p e r . S e e H o lm s tr o m v
. Le e , 2 6 S. W. 3 d 5 2 6 , 5 3 0 ( T e x. A p p . — A u s ti n 2 0 0 0 , n o p e t. ) ( w e w il l a f f ir m no-evide nce summary judgme nt if non-movant fails t o produce more than scintilla of evidenc e raising g enuine issue of fac t as to any esse n t i al el em ent of claim on which non-movant would have burden of proof at trial); see also Forbe s Inc. v. Granada Bioscience s, Inc. , 124 S.W .3d 167, 172 (Tex. 2003) (m o re t h an scintilla of evidenc e exis ts when rea sonable and fair- minded people could diffe r in their conc lusions based on evidenc e).
7Be cause Ara nda’s summ ary -judg ment evidenc e fa iled to raise a m ater ial fac t issue

on the challeng ed element of proxi mate cause , summary judgme nt on this g round was proper . See Means v. ABCABCO, Inc. , 315 S.W .3d 209, 213 (Tex. App.—Austin 2010, no pet.) (noting that noe v id e n c e s u

mm a r y ju d g me n t a ll o w s c o u

r t t o “ ‘ p ie r c e th e p le a d in g s ’ ” a n d e v a lu a te e v id e n c e to s e e if there is g enuine need for trial (quoting Benitz v. Gould Grp. , 27 S.W .3d 109, 112 (Tex. App.—San Antonio 2000, no pet.)))

. Acc ording ly , we need not rea ch Ara n d a’ s o t h er issues on appea l. See Tex. R. App. P . 47.1.

CONCLUSION

We affir m the trial court’ s summary judgme nt in favor of

Antler.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: June 1, 2016

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