ACCEPTED03-15-00243-CV6170382THIRD COURT OF APPEALSAUSTIN, TEXAS7/22/2015 10:17:26 AMJEFFREY D. KYLECLERKNo.03-15-00243-CVINTHECOURTOFAPPEALSTHIRDAPPELLATEDISTRICTOFTEXASATAUSTINKRISTINLEE,Appellantv.K&NMANAGMENT,INC.dlb\aRUDY'SCOUNTRYSTOREandBAR-B-QAppelleesONAPPEALFROMTHE981hJUDICIALDISTRICTCOURTTRAVISCOUNTY,TEXAS(HonorableRhondaHurley)APPELLANT'SBRIEFLawOfficesofPriceAinsworth,P.C.PriceAinsworthStateBarNo.009503003821JuniperTrace,#210Austin,Texas78738512-233-1111512-472-9157faxATTORNEYFORAPPELLANTKRISTINLEEIDENTITY OF PARTIES AND COUNSEL The following is a complete list ofall parties, as well as the names and address ofall trial and appellate counsel. Plaintiffsl Appellants: Counsel for the Freiheit: Kristin Lee Price Ainsworth Law Offices Ainsworth, P.C. 3821 Juniper Trace, #210 Austin, Texas 78738 Defendants/Appellees: Counsel for K&NManagement d\b\a Rudy's Country Store andBar-B-Q: K&NManagement d\b\a Rudy's Country Store andBar-B-Q Ethan Goodwin Clark, Trevino & Associates 1701 Directors Boulevard, #920 Austin, Texas 7 8 744

IITABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL..................................................................... u TABLE OF CONTENTS...................................................................................................... m INDEX OF AUTHORITIES ································································································· IV APPELLANTS' BRIEF......................................................................................................... 1 STATEMENT OF THE CASE............................................................................................. 2 ISSUES PRESENTED IN THIS BRIEF............................................................................... 2 STATEMENT OF THE FACTS........................................................................................... 2 SUMMARY OF THE ARGUMENT.................................................................................... 3 STANDARD OF REVIEW................................................................................................... 3 ARUGMEMENT AND AUTHORITIES.............................................................................. 4 A. Evidence presented to the Trial Com1 on both motions for summary judgmentraised genuine issues ofmaterial fact............................................ 4 B. Evidence Inferences Establish Constructive Knowledge ofDefects............. 6 PRAYER................................................................................................................................ 7 CERTIFICATE OF SERVICE.............................................................................................. 8

IllINDEX OF AUTHORITIES CASES PAGE Huckebee v. Time Warner Entm't Co. 19 S.W. 3d 413,422 (Tex. 2000) 19 S.W. 3d 413,422 (Tex. 2000)
.............................................................................. 3 ParkPlace Hasp. v. Estate of Milo 909 S.W. 2d 508, 510 (Tex. 1995)
............................................................................ 3 Timpte Indus. v. Gish 286 S.W. 3d 306, 310 (Tex. 2009)
............................................................................ 3,4 FordMotor Co. v. Ridge·way 82 S.W. 3d 26,29 (Tex. App. --San Antonio 2002), rev'd on other grounds, 135 4 S.W. 3d 598 (Tex. 2004)
........................................................................................... Wyatt v. Furr 's Supermarket, Inc. 908 S.W.2d 266,268 (Tex. App.- El Paso 1995, no writ) (emphasis added).............. 4 Wal-Mart Stores, Inc. v. Gonzalez (968 S.W.2d 934- Tex. 1998)
.................................................................................... 5

ivNo. 03-15-00243-CV IN THE COURT OF APPEALS THIRD APPELLATE DISTRICT OFTEXAS ATAUSTIN
KRISTIN LEE, Appellant


### v. K & N MANAGEMENT,INC. d\b\a RUDY'S COUTNRY STORE and BARB-Q Appellee
ON APPEAL FROM THE 981h JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS (HonorableRhonda Hurley)
APPELLANT'S BRIEF



### TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Appellant Kristin Lee files this BriefofAppellant. The Clerk's Record will be referenced to as "CR at [page#]."STATEMENT OF THE CASE Appellant Kristin Lee was a business invitee on the premises owned and operated by Appellee K & N Management, Inc. doing business as Rudy's Country Store and Bar-B-Q (Rudy's). She alleges that she fell over shrubbery that extended over the entry way to the Rudy's restaurant. Appellant alleges that her fall was a proximate result ofa negligently dangerous condition on the property. In the trial court, Appellee Rudy's filed an amended motion for summaryjudgment

- including a "traditional" motion and a "no-evidence" motion which was granted
on April 8, 2015. In essence, the motion asserted that the Appellee did not have constructive notice ofa dangerous condition onthe premises. ISSUE PRESENTED 1. Were genuine issues ofmaterial fact present at the time ofthe summary judgmenthearing such that reasonable minds could differ regarding whether ornot Appellee Rudy's had constructive notice ofa dangerous condition on the premises. STATEMENT OF THE FACTS On August 21, 2009, Appellant Kristin Lee was a customer on the premises owned and operated by Appellee K & N Management, Inc. d\b\a Rudy's Country Store and Bar-B-Q located at 2400 North IH-35, Round Rock, Texas 78681. Appellant Lee alleges that 1) she slipped on a landscaping bush which had fallen out ofthe curb planter area and onto the walkway located at the entrance ofthe restaurant; 2) the fall was a proximate result ofthe negligently dangerous condition 2of the landscaping at the property; 3) P. S. Landscapes, Inc. had recently maintained the landscaping on the premises and negligently left the bush extending onto the walkway; and 4) Appellee K & N Management, Inc. negligently failed to maintain the parking lot, specifically the walkway, and its negligence was a proximate cause ofthe Appellant's injuries and damages. Appellees filed their first amended no-evidence and traditional motion for summaryjudgment on February 23, 2015. Lee filed a response, and a hearing was held on April2, 2015. The trial comigranted the motion on April 8, 2015. 

### SUMMARY OF THE ARGUMENT Genuine issues of material fact were present at the time of the summary judgment hearings before the Trial Court such that reasonable minds could differ
as to whether Appellee Rudy's had constructive notice ofa dangerous condition on the premises. 

### STANDARD OF REVIEW As to a traditional motion for summary judgment, it is axiomatic that the trial court's duty at the summaryjudgment stage is not to weigh the evidence but to determine ifa material question offact exists. 1 The trial court must accept as true evidence favoring the plaintiff nonmovant, indulging every reasonable inference and resolving all doubts in plaintiffs favor. 2

1 Huckebee v. Time Warner Entm 't Co., 19 S.W. 3d 413,422 (Tex. 2000) 2 Park Place Hasp. v. Estate of Milo, 909 S.W. 2d 508,510 (Tex. 1995) Timpte Indus. v. Gish, 286 S.W. 3d 306,310 (Tex. 2009). 3Tex. R. Civ. P. 166 a(i) states in the notes and comments thereto that, to defeat a no-evidence motion for smnmary judgment, the nonmovant "is not required to marshal its proof, its response need only point out evidence thatraises a fact issue on the challenged elements." If the nomnovant presents more than a scintilla of evidence on the challenged elements, she is entitled to a trial on the merits. 3 In reviewing a no-evidence summaryjudgment, the appellate court must consider all ofthe evidence in the light most favorable to the party against whom the summaryjudgment was rendered, crediting evidence favorable to the party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. 4 

### ARGUMENTS & 

### AUTHORITIES A. Evidence presented to the Trial Court on both motions for summary judgment raised genuine issues ofmaterial fact. 1. Constructive Knowledge Standard. For a premises owner to have sufficient knowledge ofa condition to be held liable for any injuries caused by the condition, The owner/operator must have put the foreign substance on the floor and knew that it was on the floor and negligently failed to remove it, or the substance must have been on the floor for so long it should have been discovered and removed inthe exercise ofordinary care.5

3 Ford Motor Co. v. Ridgeway, 82 S.W. 3d 26, 29 (Tex. App. --San Antonio 2002), rev'd on othergrounds, 135 S.W. 3d 598 (Tex. 2004). 4 Timpte Indus. v. Gish, 286 S.W. 3d 306,310 (Tex. 2009). 5 Wyatt v. Fun·'s Supermarket, Inc., 908 S.W.2d 266, 268 (Tex. App.

- E1 Paso 1995, no writ) (emphasis added). 4To establish constructive knowledge on the part ofthe premises owner, Lee must demonstrate that the hazard was (more likely than not) present for sufficient time for the defendant to have discovered and rectified it. "Thisrule, while harsh and demanding on plaintiffs, is nevertheless well established and plaintiffs must always discharge the burden ofproving that the dangerous conditions was either known to the defendant orhad existed for such a length oftime that it should have known it."6 Lee set fmih in the trial court evidence demonstrating that Rudy's had constructive knowledge ofa dangerous condition at the entrywayto the restaurant. 2. Lee's Testimony. Kristin Lee testified that after having one, small, strawberry margarita at dinner several hours earlier, she rode with her mom and brother to Rudy's for dessert.7 Her mom pulled up to the walkwayto the entrance at Rudy's, and Kristin Lee got out ofthe backseat.8 Kristin Lee got out ofthe car, took a couple ofsteps, and fell. 9 She fell with her leg beneath her. 10 The fall resulted in her suffering a fractured ankle that had to be surgically repaired. 11 Eventually, a second surgery to
remove implantedhardware was required. 12

6 Wal-Mart Stores, Inc. v. Gonzalez, (968 S.W.2d 934- Tex. 1998). 7 CR at p. 121 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and No-Evidence Motions for Summary Judgment Exhibit A- Kristin Lee depo. at pp. 26-29). 8 !d. (Lee depo at p. 29). 9 !d. 10 !d. (Lee depo at p. 31). 11 !d. at pp 122 (Lee depo at pp. 41-44). 12 !d. at p. 123 (Lee depo at p. 49). 5Appellant Kristin Lee testified that her mom (as evidenced by a letter written by her mother Mary Lee) eventually detennined that Kristin Lee had tripped over a landscape bushthat extended over the walkway to the restaurant. 13 3. Witness' Testimony. Mary Lee, Kristin Lee's mother, testified that Justin House (an eyewitness to the accident, a friend ofthe Lee family, and also an employee at Rudy's) told the family that Kristin Lee fell over a landscape bush that was laid over the side ofthe planter. 14 Mrs. Lee did not actually see where Kristin Lee stepped when she fell because Mrs. Lee was drivingthe stopped car. 15 4. Rudy's employee's Testimony. Justin House was an employee ofRudy's at the time ofthe incident. 16 He
was about 25 feet from Kristin Lee when she fell. 17 He observed an obstacle, a plant, on the sidewalk. 18 The plant had overgrown onto the sidewalk. 19 The plant protruded out over the sidewalk. 20 When he went back to work in the next day or two, the plant had beenremoved. 21

llId. at pp. 124 (Lee depo at p. 59). 14 C.R. at p. 131 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and No-Evidence Motions for Summary Judgment ExhibitB- Mary Lee depo. at pp. 33-34). 15 Id. at pp. 130 (Mary Lee depo at p. 24). 16 C.R. at p. 138 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and No-Evidence Motions for Summary Judgment Exhibit C- depo. ofJustin House at p. 8). 17 Jd. at p. 139 (House depo at p. 12). 18 Id. at p. 140 (House depo at p. 17). 19 Jd. at p. 141 (House depo at p. 18). 20 Id. at p. 142 (House depo at p. 21). 21 Id. at p. 144 (House depo at p. 28). 6Mr. House testified that a landscaping company came out to the scene regularly (he said once a week). 22 He told the Lee family (he is a friend of Kristin's brother) that Kristin Lee fell over a plant. 23 He also gave a statement to the general manager at Rudy's that Kristin Lee fell over some bushes hanging over the sidewalk.24 In 

### Mr. House's opinion, the area looked safer after the plants were eliminated from hanging overthe walkway, a main entrance to the restaurant.25 He noticed that the plants had been cut back about one week or so later. 26 

### Mr. House saw Kristin Lee step on a bush protruding over the sidewalk. 27 When asked whether the bush protruding over the sidewalk was a hazardous condition, 

### Mr. House testified that "as a business owner, yes, I would take more precautions doing that." 28 5. Written Discovery In its responses to Inten·ogatories, Rudy's testified that the grounds were maintained on a weekly basis.29 Rudy's is not sure how long the bush was on the ground before the accident. 30

22Id. at p. 143 (House depo at p. 26). 23 Jd. at p. 145 (House depo at p. 39). 24 I d. at pp. 146-150 (House depo at pp. 46-50). 25 Id. at pp. 151-152 (House depo atpp. 51-52). 26 I d. at p. !53 (House depo at p. 55). 27 Jd. at pp. 154-155 (House depo at pp. 59-60). 28 I d. at p. !56 (House depo at p. 61). 29 C.R. at p. 162 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and No-Evidence Motions for Sununary Judgment Exhibit D- Rudy's Interrogatory answers at #4). 30 Jd.
7B. Evidentiary Inferences Establish Constructive Knowledge ofDefects The testimony delineated above suggests that the Appellent tripped over foliage that had been pennitted to extend over a walkway that patrons would foreseeably be required to use to enter the restaurant. There is no suggestion that the bush "suddenly" grew over the walkway. Indeed, the reasonable inference is that the plants grew slowly over the entrance. Unlike the event where a fellow shopper spills soap on a grocery store floor immediately before the next customer slips in it, the hazard at issue must logically have existed for a considerable time before Ms. Lee fell. The bush was observed by a Rudy's employee as an obstacle
as the event took place, the employee thought that the walkway looked safer when the bush was removed after the event, and the company had a procedure in place for periodically maintaining the landscaping. Genuine issues ofmaterial fact exist
as to how long Rudy's knew or should ofknown ofthe hazardous condition on its premises. PRAYER Wherefore, Appellant prays that this Court reverse thejudgment ofthe Trial Court, and grant each and every request for relief set forth by Appellant, and for such otherrelief, at law and in equity, to which Appellant is entitled.

8Respectfully submitted, LAW OFFICES OF PRICE AINSWORTH, P.C. 3821 Juniper Trace, #210 Austin, Texas 78738 512-233-1111 512-472-9157 fax



### By:
____________________ __ Price Ainsworth State BarNo. 00950300 ATTORNEYFORAPPELLANT KRISTINLEE 

### CERTIFICATE OF COMPLIANCE I certifY that this document was produced on a computer using Microsoft Word and contains 1644 words, as determined by the computer software's wordcount function, excluding the sections ofthe document listed in Tex. R. App. P. 9.4(i)(1).

Price Ainswmih

9CERTIFICATE OF SERVICE I certify that a true and correct copy ofthe above and foregoing document has been served to the following counsel ofrecord as indicated below on the 21st day ofJuly 2015. VIA FACSIMILIE- 512-383-0503 Ethan Goodwin Clark, Trevino & Associates 1701 Directors Boulevard, #920 Austin, Texas 78744

Price Ainsworth

10IN THE COURT OFAPPEALS THIRD APPELLATE DISTRICT OFTEXAS ATAUSTIN
KRISTIN LEE, Appellant


### v. K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BARB-Q Appellees
ON APPEAL FROM THE 98th JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS (Honorable Rhonda Hurley)
APPENDIX TO BRIEF OFAPPELLANTS
A. Final Summary Judgment signed on AprillO, 2015

IIFiled in The District Court ofTravis County, Texas CauseNo. D-1-GN-11-001839 

# AP: I 

### 02015

# M0~ At 

# l1lJ A M. KRISTIN LEE § § 

### vs. § § K & N MANAGEMENT, INC. D/B/A § RUDY'S COUNTRY STORE AND BAR-B- § Q; AND P. S. LANDSCAPES, INC. § IN THE DISTRICT**co~lva** L Price, District Clerk TRAVIS COUNTY, TEXAS

98THJUDICIAL DISTRJCT FINAL SUMMARYJUDGMENT Onthe 2nd day ofApril, 2015, the Court considered Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion for Summary Judgment ("the Motion''). After considering the Motion, the summaryjudgment evidence, the Response filed by Plaintiff, and K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q's Objections and Reply, it is the opinion ofthe Court that Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q is entitled tojudgment as a matter of law. Itis, therefore, ORDERED, ADJUDGED AND DECREED that Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion for Summary Judgment before the Couti is hereby GRANTED and that the Plaintifftake nothing against Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q. Costs of court are taxed against the Plaintifffor which execution shallbe levied. It is further ORDERED, ADJUDGED AND DECREED that Defendant K & N Management, Inc., d!h/a Rudy's County Store and Bar-B-Q's Objections to Plaintiff's summary judgment evidence are OVERRULED. All such other relief sought by way of this action not specifically provided by this judgment is hereby denied.SIGNED

## this~day

## of-'~"+'-'\'"_,_J_c_\----.-''2015. 

# nm4:::f]n

APROVEDAS TO FORM: CLARK, TREVINO & ASSOCIATES

# BY•~~ TBN: 24064492 MailingAddress: P.O. Box 258829 Oklahoma City, OK 73125-8829 Physical Address: 1701 Directors Boulevard, Suite 920 Austin, Texas 78744 Telephone: (512) 445-1580 Facsimile: (512) 383-0503 ethan.goodwin@farmersinsurance.com ATTORNEYS FORDEFENDANT K & N MANAGEMENT, INC. D/B/A RUDY'S COUNTRY STOREAND BAR-B-Q
LAW OFFICES OFPRICE AINSWORTH, P.C.

BY: PRICEAINSWORTH TBN: 00950300 3821 JuniperTrace, #210 Telephone: (512) 233-1111 Facsimile: (512) 479-9157 price@ainsworth-law.com ATTORNEYFORPLAINTIFF KRISTIN LEESIGNED this
__day of
_______ ---". 2015.

ruDGEPRESIDING

APROVED AS TO FORM: CLARK, TREVINO & ASSOCIATES

# EY:?~I/_~**~GOOD\IIJN** TBN: 24064492 MailingAddress: P.O. Box258829 OklahomaCity, OK 73125-8829 PhysicalAddress: 1701 Di:reators Boulevard, Suite 920 Austin, Texas 7&744 Telephone: (512) 445-1580 Facsimile: (512) 383-0503 ethan.good\Vln@fimnersinsurance.com ATTORNEYS fORDEFENDANTK & NMANAGEMENT, INc. D/B/ARUDYS CoUNTRYSTOREANDBAR-B-Q
LAWOFFICES OF 1'RIC1i:AXNSWORTH, l'.C.

BY:

# ~ -- 

# ·----- PlUCBAINSWORTH TBN: 00950300 3821 JuniperTrace,#210 Telephone: (512) 233-1111 Facsimile: (512) 479-9157 price@ainsworth-law.com ATTORNEY FORPLAINTIFF KRISTINLEE



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