COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

EDMUND F ORESTER, Appellant,

v. ELPASO EL ECTRI C COMP ANY, Appellee

. § § § § § § No. 08-09-00057- CV

Appea l from 171st District Court of El Paso County , Texas (TC # 2009-388)

O P I N I O N Edmund For ester appea ls from a summary judgme nt gra nted in favor of El Paso Electric Company on a pre mises liabilit y

claim. For

the re asons that follow, we aff irm.
F ACTUAL SUMMA RY On Fe bruar

y 5, 2007, Edmund For ester ate dinner at Applebee ’ s N e ig h b o r h o o d B a r a n d G r il l. After war d, he beg an to walk back to the L a Quinta I nn wher e he was stay ing overnig ht. L a Quinta is located adjac ent to, and acr oss the parking lot, from Applebe e’ s. A median separ ates the two business. An EPEC utilit y platform cover is located in the median and two y ellow posts are located it is border ed by two y ellow posts is located in the median. Whil e walking throug h the parking lot,
For ester decide d to cut acr oss the median to rea ch his hotel beca use he believed it to be a direc t path. Wit h one foot in the Applebee’s parking lot, For ester ste pped over the cur b and onto t he platform

cover
. The cover g ave way and For ester fell back into t h e Applebee ’s parking lot. For ester dislocated his shoulder while attempting to g rab one of the y ellow posts. He also suffe red a fra cture d
verte brae and a f

ew a brasions on his stomach and le g s.For ester sued EPEC claiming that it owed him a duty as an invitee to inspect the premises, 1
maintain them in a rea sonably safe manner , and war n him of any hazardous conditions. EPEC filed

a combined traditional and no evidenc e m o t i o n for summary judgme nt alleg ing it conclusively
prov ed t h at Fo re ster was a trespasser, or at best a li cense e, and that For ester had no evidenc e that
EPEC was grossly

neg lige nt or that it had ac tual knowledg e of the dang erous c ondition. The trial
court g rante d summary judgme nt for EPEC and enter ed a take n o thing judgme nt. For ester raises three issues on appea l.
SUMMAR Y JUDG MENT
For ester’ s first two issues addre ss the traditional summary judgme nt g rounds. I n I ssue One, he contends that as an ease ment holder, EPEC owed him the duty of ordinary car e reg ardle ss of his
status at t he ti me of i njury

. I n I ssue Two, For ester arg ues t hat s hould the court deter mine that his
status at the time of his injury is deter minative of the duty owed, then the evidenc e shows he was an invitee. I n I ssue Three , which addre sses the no evidenc e summary judgme nt g round, For ester asser ts that should it be deter

mined that he was a licensee , then a materia l fac t question exis ts w ith r eg ard
to EPEC’s g ross neg lige nce, or its failure to war n of the condition or make the condition rea sonably safe

. Standards of Review
T h e s ta n d a rd of revie w for traditional summary judgme nt under T E X .R.C I V .P. 166a(c ) is w e ll established. Nixon v. Mr. Property Managem ent Company, Inc. , 690 S.W .2d 546, 548 (Tex. 1985). The moving party car

ries the burde n of showing there is no ge nuine issue of mate rial fa ct and it is entitled to judgme nt as a matter of law. Diversicare Gene ral P a r t n er , Inc. v. Rubio , 185 S.W .3d

F o r e s t e r a l s o s u e d s e v e r a l A p p l e b e e ’ s e n t i t i e s b u t t h o s e d e f e n d a n t s a r e n o t p a r t o f t h i s a p p e a l a s t h e t r i a l c o u r t 1
s e v e r e d F o r e s t e r ’ s c l a i m s a g a i n s t E P E C

.842, 846 (Tex. 2005); Browning v. Prostok , 165 S.W .3d 336, 344 (Tex. 2005). Evidence favor able

to the non-movant will be taken as true in deciding whether there is a disputed issue of materia l fac t.
Fort W orth Osteopathic Hospital, Inc. v. Ree se , 148 S.W .3d 94, 99 (Tex. 200 4 ). All rea sonable infere nces, including any doubts, must be resolved in favor of the non-movant. Id

. A defe ndant is entitled t o s u mmary judgme nt if the evidence disproves as a matter of law at least one element of

eac h of the plaintiff’s cause s of action or if it conclusively establishes all elements of an aff irmative defe nse. D. Houston, Inc. v. Love , 92 S.W .3d 450, 454 (Tex. 2002); Randall’s Food Marke ts, Inc. v. Johnson , 891 S.W .2d 640, 644 (Tex. 1995)

. Once the defe ndant establishes a rig ht to summ ary judgme nt a s a matter of law, the burden shifts to the plaintiff to pr esent evidenc e raising a g enuine
i s s u e o f materia l fac t. City of Houston v. Clear Creek Basin Authority , 589 S.W .2d 671, 678-79 (Tex. 1979); Scown v. Neie , 225 S.W .3d 303, 307 (Tex.App.--El Paso 2006, pet. de nied).
A no-evide nce summary judgme nt is essentially a pretria l direc ted verdic t, and we apply the

same leg al sufficie ncy standard of revie w. Viasana v. W ard County , 296 S.W .3d 652 (Tex.App.--El
Paso 2009, no pet.); Martinez v. Leeds , 218 S.W .3d 845, 848 (Tex.App.--El Paso 2007, no pet.). The party moving for no-evide nce summary judgme n t m u st asser t that there is no evidenc e of one or

more e ssential elements of a claim or defe nse on which the non-movant would have the burde n of proof at trial. Viasana , 296 S.W .3d at 654; Martinez , 218 S.W .3d at 848; see T E X .R.C I V .P. 166a(i). The burden then shifts to the non-movant to produce evidenc e raising a fac t issue on the challeng ed elements. Viasana , 296 S.W .3d at 654; Martinez , 218 S.W .3d at 848. To ra ise a g enuine issue of materia l fac t, the non-movant must set forth more than a s ci n t illa of probative evidenc e as to an essential element of his claim o r d ef en s e. Viasana , 296 S.W .3d at 654; Martinez , 218 S.W .3d at 848.
Easeme nt HolderI n his first issue, For ester contends that as an ea s em ent holder, EPEC owed him a duty of

ordinary car e reg ardle ss of his status at the t i m e o f t h e i njury

. EPEC counter s that this reg ular
neg lige nce theory has been waived beca use For ester pled a premises liability case and responde d to EPEC’s summary

judgme nt motion by

utiliz ing pr emises liability principles. 2
I n his live pleading s, For ester stated a neg lige nce cause of action based on premises liability

. Asserting that he was an invitee at the time of his injury , For ester alleg ed that EPEC “ had the duty
to inspect the premises and maintain them in a rea sonably safe manner , and to war n of any hazardous conditions.” For ester refe rre d to the defendants as the “owner, occupier, and/or poss essor” of t he premises. He did not asser t that EPEC was an ease ment holder. We construe pleading s liberally in favor of the pleade r when specia l exc ep t i o n s have not been filed. Horizon/CMS Healthcare Corporati on v. Auld , 34 S.W .3d 887, 896 (Tex. 2000). L ibera l construction does not mean that we imply claims that are not alleg ed. Toles v. Toles , 113 S.W .3d 899, 911 (Tex.App.--Da llas 2003, no pet.). I n deter

mining whether a cause of action has been pled, the court must be able from an examination of the plaintiff’s pleading s alone to asce rtain with rea sonable cer tainty the elements of

a ca use of a ction and the r elief soug ht w ith sufficient par ticularity upon which a judg ment may be b as ed

. Coffey v. Johnson , 142 S.W .3d 414, 417 (Tex.App.--Ea stland 2004, pet. denied) , citin g Stoner v. Thompson , 578 S.W .2d 679, 683 (Tex. 1979). After revie wing the rec ord, we are unable
to deter mine with rea sonable cer

tainty that For ester’ s pleading s include this claim. Fur ther, For ester did not raise the issue in his summary judgme nt response or prese nt any summary judgme nt evidenc e rela ted to his claim on appea l that EPEC is an ea s em en t h o lder. See McConnell v. Southside

A t o r a l a r g u m e n t , F o r e s t e r a r g u e d f o r t h e f i r s t t i m e t h a t t h e t r i a l c o u r t e r r e d b y g r a n t i n g s u m m a r y j u d g m e n t 2
w i t h r e s p e c t t o t h i s p a r t i c u l a r c l a i m b e c a u s e E P E C ’ s s u m m a r y j u d g m e n t m o t i o n f a i l e d t o a d d r e s s i t

. T h i s i s s u e i s n o t i n c l u d e d i n F o r e s t e r ’ s b r i e f o n a p p e a l

. T h e r e f o r e , i t i s w a i v e d

. S e e T e x a s M e d i c a l A s s o c i a t i o n v
. T e x a s W o r k e r s C o m p e n s a t i o n C o m m i s s i o n , 1 3 7 S

. W

. 3 d 3 4 2 , 3 5 1 ( T e x . A p p
. - - A u s t i n 2 0 0 4 , n o p e t

. ) ( a r g u m e n t w a i v e d w h e r e a s s e r t e d d u r i n g o r a l a r g u m e n t a n d i n p o s t

- s u b m i s s i o n b r i e f , b u t n o t i n p r e - s u b m i s s i o n b r i e f s )

.Indepe ndent School District , 858 S.W .2d 337, 343 (Tex. 1993). I nstead he utiliz ed premises liability

elements and principles and never asser ted that EPEC, as an ease ment holder, owed him a differ ent duty of car e. As the non-movant, For ester must have expressly prese nted to the trial court, by written

answe r or response , any issues defe ating EPEC’s entitlement to judgme nt as a matter of law. McConnell , 858 S.W .2d at 343; T E X .R.C I V .P. 166a(c ). Acc ording ly , we overr ule Fo re s t er’ s first issue.
Forester’s Status
I n I ssue Two, For ester contends the trial court err ed by concluding as a matter of law that he

was a licensee ra t h er t h an an invitee. EPEC responds that the summary judgme nt evidenc e conclusively

neg ated the mutual be nefit aspec t ne cessa ry to establish invitee status. I n a pre mises liability action, the duty

owed by a premises owner is determined by the status of the c omplaining
p ar ty at the time and place of injury

. Greater Houston Transport ation Company v. Phillips , 8 0 1
S .W.2d 523, 525 (Tex. 1990). An invitee is a person who enter s the premises of anothe r at t h e
express or implied invitation of the owner or occupie r for their mutual benef it. W ong v. Tenet Hospitals, Ltd. , 181 S.W .3d 532, 537 (Tex.App.--El Paso 2005, no pet.); Braudrick v. W al-Mart Stores, Inc. , 250 S.W .3d 471, 476 (Tex.App.--El Paso 2008, no pet.). The owner or occupie r owes

an invitee the duty to keep the proper ty safe and must use rea sonable car e to protec t the invitee from

rea sonably fore seea

ble injuries. W

ong , 181 S.W .3d at 537. I n the abs en ce o f a rela tionship that inures to the mutual benef it of the entra

nt and the owner , an entra nt is considere d a licensee

. Montes v. Indian Cliffs Ranch, Inc. , 946 S.W .2d 103, 105 (Tex.App.--El Paso 1997, pet. de nied). Taking as true the summary judgme nt evidenc e favor ab l e t o For ester and resolving all

rea sonable infere nces and any d o u b ts in h is favor , the evidenc e conclusively established that For ester
cut acr oss the parking lot and stepped on the utilit y p l at fo rm co v er for his own convenie nce andbenef

it. He had not been a customer of EPEC, he was not g iven permission by EPEC to use the path, and he did not use the path as a result of any direc tion or coer cion by EPEC. Be cause For ester did
not prese nt summary judgme nt evidenc e that EPEC derive d any benef it from For ester cutting acr oss the median, he failed to cre ate an issue of fac t wh i ch wo u l d prec lude the g ranting of summary judgme nt. And beca

use EPEC conclusively n ega t ed the mutual benef it element nece ssary to establish For ester’ s status as an invitee, the trial court did not err by concluding that For ester held the status of a licensee at the time and place of h i s i n j u ry
. See W

ong , 181 S.W .3d at 537. We

overr ule I ssue Two. Gross Negligence
I n his final issue, For ester maintains that the trial court err ed by g ranting a no evidenc e
summary judgme nt with respe ct to his g ross neg lige nce claim. The test for g ross neg lige nce contains both an objective and a subjective component. Lee Lewis Construction, Inc. v. Harrison , 70 S.W .3d 778, 785 (Tex. 2001); Universal Servic es Company v. Ung , 904 S.W .2d 638, 641 (T ex
. 1 9 9 5 ).
Gross neg lige nce means an act or omissi o n: (1) which when viewed objectively from the actor ’s

s t andpoint at the time of its occur renc e involves an extreme deg ree of risk, considering th e probability and mag nitude of the potential harm to others, and (2) of which the act o r h as actua l, subjective awa

rene ss of the risk involved, but never theless proce eds with conscious indiffer ence to
t he rig hts, safe ty , or welfa re of others. T E X .C I V .P R A C .&R E M .C O D E AN N
. § 41.001(11)( Vern o n 2008); see Loui siana-Pacific C orp. v. Andrade , 19 S.W .3d 2 4 5 , 246 (Tex. 1999); Transport ation
Insurance Company v. M oriel , 879 S.W .2d 10, 23 (Tex. 1994). Evidence of si mple neg lige nce is
not enoug h to prove either the o b j ec t i v e or subjective elements of g ross neg lige nce. Universal
Servic es , 904 S.W .2d at 641. The f irst element, “e x treme r isk,” means not a r emote possibility of injury or even a high probability of minor harm, but rathe r the likelihood of serious injury to theplaintiff. Mobil Oil Corporati on v. Ellender , 968 S.W .2d 917, 921 (Tex. 1998); Universal Servic es ,

904 S.W .2d at 641. The second element, “ac tual awa rene ss,” means that the defe ndant knew about the peril, but its acts or omissions demonstrated that it did not c are
. Ellender , 968 S.W .2d at 921. Circumstantial evidenc e is sufficie nt to prove either element. Id

. Reg arding the ex treme risk element, Fore s t er d o es not point to any evidenc e showing t hat the condition of the platform cover posed the like l ihood of serious injury to him as opposed to a
remote possibili ty or even a high probability of minor harm. I nstead, For ester relies on the testimony of an ex p ert witness that the platform was unstable due to improper desig n and installation and
EPEC failed to inspect or maintain it. The witness did not testify that there was a likelihood of

s erious injury to For ester nor did he testify to fac ts from which it could be inferr ed t h at s u ch a likelihood ex isted. Consequently , For ester f ailed to ca

rry his burden under

Rule 166a(i). Turning to the second element of g ross neg lige nce, we must deter mi n e wh et h er For ester produce d more then a scintilla of evidenc e establishing that EPEC knew about the peril, but its acts

or omissions demonstrated it did not car e. W al-Mart Stores, Inc. v. Alexande r , 868 S.W .2d 322, 326 (Tex. 1993). For ester prese nted evidenc e to show that EPEC installed the platform in 1995 and that it was responsible for its maintenanc e and inspection. After the i nstallation of t he platform, there

wer e no inspections, repa ir s , o r m o d i fica tions of the box or lid until EPEC was notified that the

cover was loose. None of this evidenc e establishes that EPEC knew of the dang er. For ester also relied on evidenc e that another individual, Arturo Almanzar, was injured on the same platform two day s ear lier. B ut Almanzar filed an a ccide nt report a t Applebee ’s, not with EPEC. EP EC did not

rec eive notification about the condition of the platfor m until afte r Forester ’s i njury

. We conclude that For ester failed to prese nt more than a scintilla of probative evidenc e to raise a g enuine issue of materia l fac t as to whether EPEC was actua lly awa re of the risk cause d by the condition of the utilit yplatform cove r. I ssue Thre e is overr uled. We aff

irm the summary

judgme nt gr anted.

October 13, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.