COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RONNIE FLORES, 

Appellant, 

v. 

HULL ASSOCIATES NORTH, LP 

AND HULL ASSOCIATES, LLC, 

Appellees. 

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No. 08-20-00154-CV 

Appeal from the 

419th District Court 

of Travis County, Texas

(TC # D-1-GN-20-002933) 

O P I N I O N 

Appellees filed a traditional and no-evidence summary judgment motion against Appellant, 

which the trial court granted. In two issues, Appellant asserts the trial court erred in concluding 

Appellees were entitled to traditional and no-evidence summary judgment.1 We affirm.

BACKGROUND

Factual Background 

Appellant, Ronnie Flores, was involved in an accident that occurred during the construction 

of an apartment complex known as The Michael at Presidio (“The Michael”), located in Austin, 

Texas. The general contractor for the project was Street Lights Residential Presidio I Construction 

LLC (“SLR”). As the general contractor, SLR hired several subcontractors for the construction of 

1 Appellant’s third issue pertains to the legal standards we analyze under Issues One and Two. In accordance with 

legal soundness and legal efficiency, we incorporate Issue Three into our analysis of Issues One and Two.
2

the project, including Hull Associates North, LP (“Hull”), who was hired to perform the framing 

on the jobsite. As per the contractual agreement between Hull and SLR, Hull’s work also included

the installation of temporary ladders and guardrails on the jobsite. Specifically, 

Subcontractor [Hull] shall supply and install and be responsible for continuous 

maintenance of safety guardrails at all patios, balconies, breezeways, shafts, and 

other necessary openings and elevations in accordance with usual and customary 

safety standards. Subcontractor shall provide guardrail protection at all leading 

edges over 6’ in height throughout the course of this subcontractor’s scope, through 

substantial completion of cornice and punch out fur downs. Subcontractor includes 

an additional allowance of five (5) hours per week to reinstall guardrails that are 

removed and not put back up by others. [Emphasis added].

. . .

Subcontractor [Hull] specifically includes temporary site built ladders as necessary 

to complete their work. Stair landings / openings shall be installed in their entirety 

per floor, so as to have all components of ladder system complete and correct prior 

to the start of the next floor. [Emphasis added].

Hull did provide temporary ladders on the jobsite. According to Hull’s Senior Project Manager, 

Robert Simons, Hull had completed its framing work in Building 2—where the accident 

occurred—and neither Hull employees, nor its crew, had been in Building 2 for approximately two 

weeks at the time of the accident. Hull was not on the jobsite on the day of the accident.

SLR also hired MAAMECH South, LLC as the plumbing subcontractor, who in turn

subcontracted the plumbing work to P&R Plumbing. Appellant was working for P&R Plumbing 

as a plumber at the time of the accident. The plumbers were the only trade working in Building 2 

at the time of the accident.

On the morning of the accident, Appellant was installing pipes on the second floor

and building 2 was wet and muddy from rain the day before. To perform his work, Appellant

descended from the second floor to the first floor to get materials, and then ascended back to the 

second floor where he installed the pipes. Rather than using the ladders installed by Hull, Appellant
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used a floor truss that someone vertically attached to the wall. Appellant was descending to the 

first floor by way of the floor truss when he slipped and fell to the ground.2 Specifically, Appellant 

claimed he moved his right leg down first and, in the process, slipped and fell. As a result, 

Appellant underwent reconstructive hip surgery and leg surgery.

After the accident, Appellant was instructed by his plumbing employer to falsely report to 

Occupational Safety and Health Administration (“OSHA”) investigators that he fell from a jobbuilt ladder, rather than the truss he actually fell from. Appellant followed his employer’s 

instructions and made a false report to OSHA claiming he fell from a job-built ladder. Appellant 

eventually admitted to OSHA that he fell from a floor truss and not a job-built ladder. 

Although Hull purchased the truss at issue to perform its work, it denies it put up the truss

to be used as a ladder and does not know who did. Hull’s corporate representative testified Hull 

deferred to OSHA’s authority and relied on OSHA to investigate the matter; according to Simons, 

Hull was not cited by OSHA.

Procedural History

Appellant initiated suit against Hull Associates North, LP and Hull Associates, LLC 

(collectively, “Hull”) for common law negligence, negligence per se, joint enterprise and joint 

venture, negligent and intentional withholding of medical treatment, and premises liability. The 

suit proceeded under Cause No. D-1-GN-17-003055 in the 345th District Court. Hull moved for a 

traditional and no-evidence motion for summary judgment as to all claims asserted by Appellant. 

The trial court granted Hull’s traditional and no-evidence motion for summary judgment. It also 

sustained objections to the statements in the affidavit of Robert Simons attached to Hull’s motion 

for summary judgment, which state: “Hull did not install or affix the floor truss on the wall and 

2 A truss is a pre-assembled piece of wood used in framing. It is shaped like a ladder, but is not to be mistaken or used 

as a ladder. 
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never saw the floor truss nailed to the wall prior to Mr. Flores’ accident . . . Hull never saw the 

floor truss in use or heard of a floor truss being used prior to the accident.” The trial court overruled

the remainder of Appellant’s objections to the affidavit. 

Appellant’s suit was severed into a separate action and assigned new Cause No. D-1-GN20-002933 in the 419th District Court. Upon severance, the trial court’s order constituted an entry 

of final judgment and Appellant timely appealed in the 419th District Court.3

DISCUSSION

In Issue One, Appellant argues the trial court erred in concluding Hull was entitled to 

traditional summary judgment. In Issue Two, Appellant argues the trial court erred in concluding 

Hull was entitled to no-evidence summary judgment. We disagree. 

Standard of Review

We review a trial court’s summary judgment de novo. Salazar v. Ramos, 361 S.W.3d 739, 

745 (Tex.App.—El Paso 2012, pet. denied). Appellate review is limited to consideration of the 

evidence presented to the trial court. Id. “When a summary judgment does not state or specify the 

grounds upon which it relies, we may affirm the judgment if any of the grounds presented in the 

summary-judgment motion are meritorious.” Id. When a party files a hybrid summary judgment 

motion on both traditional and no-evidence grounds, we first review the trial court’s judgment 

under the no-evidence standard of review. Id. If the nonmovant failed to produce more than a 

scintilla of evidence under the standards of Rule 166a(i), there is no need to analyze whether the 

movant’s summary judgment proof satisfied the less stringent burden set forth for traditional 

summary judgment under Rule 166a(c). TEX.R.CIV. P. 166a; Salazar, 361 S.W.3d at 745. 

3 This case was transferred from our sister court in Austin County, Texas pursuant to the Texas Supreme Court’s 

docket equalization efforts. See TEX.GOV’T CODE ANN. § 73.001. We follow the precedent of the Austin Court of 

Appeals to the extent they might conflict with our own. See TEX.R.APP.P. 41.3.
5

In conducting a no-evidence summary judgment review, we view the evidence presented 

by the motion and the response in the light most favorable to the party against whom the summary 

judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and 

disregarding contrary evidence unless reasonable jurors could not. Salazar, 361 S.W.3d at 746. A 

genuine issue of material fact exists when more than a scintilla of evidence of the challenged 

element is produced. Id. More than a scintilla of evidence exists when the evidence rises to a level 

that would allow reasonable, fair-minded people to differ in their conclusions. Id. However, less 

than a scintilla of evidence exists when the evidence is so weak it does no more than create a 

suspicion of a fact. Id. A trial court is required to grant a no-evidence motion unless the nonmovant 

produces summary judgment evidence that raises a genuine issue of material fact regarding each 

challenged element. Id. 

Applicable Law 

When one is injured on the property in the control of another, two theories of liability can 

apply—negligent activity (negligence) and premises liability. See United Scaffolding, Inc. v. 

Levine, 537 S.W.3d 463, 470-71 (Tex. 2017). The Texas Supreme Court has outlined the 

applicable theories of recovery as follows: 

[A] person injured on another’s property may have either a negligence claim or a 

premises-liability claim against the property owner. When the injury is the result of 

a contemporaneous, negligent activity on the property, ordinary negligence 

principles apply. When the injury is the result of the property’s condition rather 

than an activity, premises-liability principles apply.

Id. at 471 (citing Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016)). 

Negligence and premises liability claims are separate, distinct theories of recovery, and are not 

interchangeable. Id. In a negligent activity case, a property owner or occupier must do what a 

person of ordinary prudence in the same or similar circumstances would have done, whereas a 
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property owner or occupier in a premises liability case must use ordinary care to reduce or 

eliminate an unreasonable risk of harm created by a premises condition the owner or occupier 

knows of or should have known of. Id. The distinction between these claims is based on the 

principle that “negligent 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.” Id. (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)). 

The Source of Appellant’s Injury

We must honor the general principles that distinguish negligent activity from premises

liability claims. See id., at 472. Appellant alleged various theories of negligence in addition to his 

premises liability claim against Hull. As a threshold matter, we turn to whether Appellant’s injury 

resulted from a contemporaneous negligent activity, or a condition on the property. 

In this case, Appellant alleged he was injured when he slipped and fell from a floor truss 

that was vertically attached to the wall. In his trial court petition, Appellant did not allege any sort 

of contemporaneous, ongoing activity that caused his injury. The mere fact that Appellant pleaded 

his claims as negligence claims does not make them so; Appellant’s claims are sound in premises

liability—they arise out of a truss that Appellant slipped and fell from. On appeal, Appellant 

attempts to assert a viable negligent activity claim and argues, because Hull was contractually 

required to supply, install and maintain safety guardrails, its failure to do so means “Hull 

maintained control over the injury causing condition or activity.” We fail to see how it is leally 

sound to characterize the source of Appellant’s injury as a negligent activity. Appellant has not 

alleged that Hull controlled Appellant’s work and that Hull’s negligent control of his work is what 

led to his injury. See, e.g., Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)(“Recovery on 
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a negligent activity theory requires that the person have been injured by or as a contemporaneous 

result of the activity itself rather than by a condition created by the activity.”)[Emphasis added]. 

In Appellant’s trial court petition, he alleged, among other things, that Hull failed to “build 

and install safe ladders with adequate side rails,” and “properly secure the job-made ladders.” In 

his appellate brief, Appellant alleges he “was injured as a plumber at an apartment construction 

site when he fell from Hull’s wooden framing truss that Hull dangerously installed as a ladder and 

which Hull left without warning to be used by unsuspecting plumbers who worked in the building 

after it was framed by Hull.” 

In essence, Appellant claims his injury resulted from a physical condition Hull created and 

then left on the premises. The Texas Supreme Court has recognized “slip/trip-and-fall cases have 

consistently been treated as premise defect causes of action.” United Scaffolding, Inc., 537 S.W.3d 

at 472 (quoting Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016))(Plaintiff 

claimed his injury resulted from a physical condition created and left on the premises, which the 

Texas Supreme Court found did not constitute a negligent activity, but rather, a premises defect). 

See, e.g., Keetch, 845 S.W.2d at 264 (holding although a slip-and-fall plaintiff alleged injury as a 

result of grocery store plant spraying, no ongoing activity was occurring when the plaintiff was 

injured and thus, the claim was properly submitted as premises liability); Clayton W. Williams, Jr., 

Inc. v. Olivo, 952 S.W.2d 523, 526-29 (Tex. 1997)(holding that a slip-and-fall plaintiff who alleged 

injury resulting from drill pipe thread protectors that were left on the ground was not a 

contemporaneous result of someone’s negligence, but rather, was a premises defect case).

We see no reason to depart from the same conclusion here, where the only fair reading of 

Appellant’s allegations is that his injury resulted from a physical condition—a floor truss—and 

not a contemporaneous activity. The lack of an allegation or evidence of a contemporaneous, 
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ongoing activity as the cause of the injury forecloses the possibility that Appellant’s claim can 

constitute a negligent activity claim. See e.g., United Scaffolding, Inc., 537 S.W.3d at 472

(Employee’s alleged injury arose from premise defect on scaffold, as required for premisesliability 

theory of recovery, despite contention that injury arose from contractor’s negligent activity of 

improperly assembling, erecting, or securing scaffolding; employee alleged he was injured when 

he fell through hole in scaffold and employee never alleged that contemporaneous, ongoing 

activity caused injury). When the alleged injury is the result of a premises condition, the injured 

party can only recover under a premises liability theory. See H.E. Butt Grocery Co. v. Warner, 845 

S.W.2d 258, 259 (Tex. 1992). 

We hold Appellant’s alleged injury arose from a premises defect, not a negligent activity. 

Thus, Appellant’s only potential cause of action is limited to a premises liability theory. See H.E. 

Butt Grocery Co., 845 S.W.2d at 259. Accordingly, we need not address whether the trial court

erred in granting traditional and no-evidence summary judgment on Appellant’s remaining 

asserted grounds—common law negligence, negligence per se, joint enterprise and joint venture, 

and negligent and intentional withholding of medical treatment. 

Premises Liability

We now turn to Appellant’s premises liability claim. In his second amended petition, 

Appellant asserted claims for negligence, negligence per se, joint enterprise and joint venture 

liability, negligently and intentionally withholding emergency medical treatment, and premises

liability. Hull moved for traditional and no-evidence summary judgment on all of Appellant’s 

claims.

4 However, Appellant did not respond to, or otherwise address, the premises liability

4 In Hull’s motion for traditional and no-evidence summary judgment, Hull argued it was not liable under theories of 

premises defect, negligent activity, common law negligence, negligence per se, joint enterprise and joint venture, and 

negligent and intentional withholding of medical care.
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portion of Hull’s summary judgment in his responsive pleading to the motion. Appellant only 

responded to Hull’s claims for negligence.

Moreover, on appeal, Appellant once more failed to respond to or address premises liability 

in his appellate brief. There is no mention of premises liability in Appellant’s brief; the entirety of 

his brief consists of liability theories of negligence. Hull argues the trial court’s order granting 

summary judgment should be affirmed as to all claims on which Hull moved for summary 

judgment but to which Appellant did not respond. We agree. 

When the trial court’s order does not state the grounds on which the summary judgment is 

based, the appellant must show that none of the grounds proposed support the judgment granted. 

Unit 82 Joint Venture v. Int’l Commercial Bank of China, Los Angeles Branch, 359 S.W.3d 267, 

270 (Tex.App.—El Paso 2011, pet. denied). When an appellant fails to negate each ground on 

which the judgment could have been granted, the reviewing court must affirm. Id. Thus, as the 

party challenging summary judgment on appeal, Appellant was required to negate all grounds

which could have supported the judgment. See id. Appellant’s failure to challenge the summary 

judgment on the premises liability ground creates a presumption it is valid. Cuidado Casero Home 

Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 743

(Tex.App.—El Paso 2013, no pet.)(“When a summary judgment ground goes unaddressed, its 

validity is presumed.”) Because Appellant failed to address each ground upon which the trial court 

could have based its ruling, we need not reach the merits of his premisesliability claim. Appellant’s 

failure to appeal the trial court’s granting of summary judgment on the premises liability claim, 

and the presumption of validity created therefrom, is outcome determinative.5

5 We also find Appellant’s remaining claims of negligent activity, common law negligence, negligence per se, joint 

enterprise and joint venture, and negligent and intentional withholding of medical care are all subsumed within the 

premises liability claim.
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In Issue One, Appellant maintains the trial court erred in concluding Hull was entitled to 

traditional summary judgment. In Issue Two, Appellant argues the trial court erred in concluding 

Hull was entitled to no-evidence summary judgment. As a threshold matter, we concluded 

Appellant’s injury arose from a premises defect; thus, Appellant’s only potential cause of action 

is limited to a premises liability theory. See H.E. Butt Grocery Co., 845 S.W.2d at 259. However, 

Appellant’s failure to address the trial court’s granting of summary judgment on the premises

liability claim necessitates that the traditional and no-evidence summary judgment granted in favor 

of Hull be affirmed.

Issue One and Issue Two are overruled. 

CONCLUSION

For these reasons, we affirm.

July 27, 2022

YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.