IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT 

SITTING AT AUSTIN, TEXAS 

03-15-00670-CV

-------------------------------------------------------------------------------------------------------------------------------------------

Susan Aranda 

Vs. 

Cindy Sue Willie Partnership Trust 

-------------------------------------------------------------------------------------------------------------------------------------------

Brief of Appellant Susan Aranda 

-------------------------------------------------------------------------------------------------------------------------------------------

Appealed from Cause No. D-1-GN-13-000525 

District Court of Travis County, Texas 

Honorable Judge Meachum Presiding 

No Oral Argument Requested 

Respectfully submitted, 

THE CARLSON LAW FIRM, P.C. 

11606 N. IH-35

Austin, Texas 78753 

Telephone: (512) 346-5688 

Fax: (512) 719-4362 

Robert L. Ranco 

SBN: 24029785 

Rranco@carlsonattorneys.com 

Roberto Flores 

SBN: 24074211 

Rflores@carlsonattorneys.com 

Attorneys for Appellant 

ACCEPTED

03-15-00670

8261402

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/16/2015 11:36:02 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/16/2015 11:36:02 AM JEFFREY D. KYLE Clerk
03-15-00670-CV

-------------------------------------------------------------------------------------------------------------------------------------------

Susan Aranda

Vs.

Cindy Sue Willie Partnership Trust 

-------------------------------------------------------------------------------------------------------------------------------------------

Certificate of Parties and Attorneys

Pursuant to Rule 38.1 (a) of the Texas Rule of Appellate Procedure Susan 

Aranda, Appellant, supplies the following list of parties to the order appealed from 

and the names and addresses of counsel:

Parties

Susan Aranda

Cindy Sue Willie Partnership Trust

Attorneys 

Robert L. Ranco

SBN: 24029785 

Roberto Flores 

SBN: 24074211 

THE CARLSON LAW FIRM, P.C.

11606 N. IH-35

Austin, Texas 78753

Telephone: (512) 346-5688

Fax: (512) 719-4362

Attorney for Appellee
Sharon D. Hobbs

SBN:09739500

Allen Stein & Durbin, P.C.

6243 IH-10 West, 7th Flood

P.O. Box 101507

San Antonio, Texas 78201

Phone: (210) 734-7488

Fax: (210) 738-8036 

Attorney for Appellant 

Trial Court

Appealed from Cause No. D-1-GN-13-000525

District Court of Travis County, Texas

Honorable Judge Meachum Presiding
Contents

Table of Authorities...................................................................................................................... 5

Statement of the Case ................................................................................................................... 1

Statement of the Issues ................................................................................................................. 2

Statement of Facts......................................................................................................................... 3

Summary of the Argument .......................................................................................................... 4

Standard of Review....................................................................................................................... 5

Argument....................................................................................................................................... 6

A. The Trial Court Erred in Granting Antler’s No-Evidence Motion for Summary Judgment 

Because Aranda Presented Evidence of Each Element of Her Claim ........................................ 6

1) The Ledge Posed an Unreasonable Risk of Harm.............................................................. 6

2) Antler Knew or Reasonably Should Have Known of the Dangerous Ledge ..................... 8

3) Antler Never Warned of the Dangerous Ledge .................................................................. 8

4) Aranda Tripped on the Ledge........................................................................................... 10

B. The Trial Court Erred in Granting Antler’s Traditional Motion for Summary Judgment ... 16

1) Antler Did not Present Evidence that Aranda’s Injuries were Not Caused by the Incident 

or that they Warned Her........................................................................................................ 16

2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous Condition Caused 

Aranda’s Injury as Well as Whether Antler Breached its Duty to Remedy The Condition. 17

Conclusion ................................................................................................................................... 18

Prayer........................................................................................................................................... 19

Certificate of Service................................................................................................................... 21

Certificate of Compliance........................................................................................................... 21

Appendix...................................................................................................................................... 22
Table of Authorities

Statutes

TEX. R. CIV. P. 166a(i) ...............................................................................................6

Texas State Cases

Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) .................................................5

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)..............................................5

Cohen v. Landry’s Inc., 442 S.W.3d 818 (Tex. App—Houston [14th Dist.] 2014, 

pet denied) ..............................................................................................................6

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983)...................................8

Dallas Cent. Appraisal Cen. V. Cunningham, 161 S.W.3d 293 (Tex. App.—Dallas 

2005, no pet.)..........................................................................................................5

Del Lago Partners v. Smith, 307 S.W.3d 762 (Tex. 2010)......................................10

Ford Motor Co v. Ridgeway, 135 S.W.3d 598 (Tex. 2000)......................................5

G&H Towing Co v. Magee ̧347 S.W.3d 293 (Tex. 2011).......................................15

Hammerly Oaks, Inc v. Edwards ̧ 958 S.W.2d 387 (Tex. 1997).............................12

Henkel v. Norman, 441 S.W.3d 249 (Tex. 2014) ..................................................8, 9

Lear Siegler, Inc v. Perez, 819 S.W.2d 470 (Tex. 1991).........................................16

Marathon Corp v. Pitzner, 106 S.W.3d 724 (Tex. 2003)........................................11

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654 (Tex. 1999) (plurality op.)................10

Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013)................................17

Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .................17
Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336 (Tex. App.—Austin 2000, pet 

denied) ....................................................................................................................6

Seideneck v. Cay Bayreuther Assocs., 451 S.W.2d 751 (Tex. 1970) ........................6

Sweet v. Flow Force Plumbing, L.L.C. NO 05-12-01688-CV 2014, Tex. App. 

Lexis 5125 (Tex. App.—Dallas May 13, 2014, no pet.)......................................12

TXI Operations, LP. v. Perry, 278 S.W.3d 763 (Tex. 2009).................................8, 9

Wal-Mart Stores, Inc v. Gonzalez, 968 S.W.2d 924 (Tex. 1998)..............................5

Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005).............................................10
1

03-15-00670-CV

-------------------------------------------------------------------------------------------------------------------------------------------

Susan Aranda

Vs.

Cindy Sue Willie Partnership Trust 

-------------------------------------------------------------------------------------------------------------------------------------------

TO THE HONORABLE JUDGE OF SAID COURT:

Statement of the Case

This is personal injury case based on premises liability. Susan Aranda

(hereinafter Aranda) was injured on the property of Appellee, The Willie Limited 

Partnership d/b/a ANTLER MINI STORAGE (hereinafter “Antler”) on November 

22, 2012. Aranda filed a lawsuit against Antler Mini Storage and The Cindy Sue 

Willie Partnership Trust on February 11, 2013. C.R. 2.

Antler filed a Traditional and No-evidence Motion for Summary Judgment

on April 28, 2015. C.R. 44. The motion was not joined by codefendant The Cindy 

Sue Willie Partnership Trust. Aranda filed a response and objected to the 

presentation of much of Antler’s evidence. C.R. 141. The Traditional and NoEvidence Motions for Summary Judgment were both granted on July 23, 2015.
2

C.R. 201. Aranda’s objection to the evidence regarding marijuana use was granted. 

C.R. 200. Aranda filed a motion for reconsideration and motion for new trial on 

August 11, 2015. C.R. 202. The Motion for New Trial was denied on October 5, 

2015. C.R. 220. Aranda filed a Motion to Sever which was granted on October 19, 

2015. C.R. 222. The order granting Defendant’s Motion for Summary Judgment 

became full and final on October 19, 2015. C.R. 222. Aranda appeals the granting 

of Antler Mini Storage’s Traditional and No-Evidence Motions for Summary 

Judgment.

Statement of the Issues

A. The Trial Court Erred In Granting Antler’s No-Evidence Motion For Summary 

Judgment Because Aranda Presented More Than A Scintilla Of Evidence Of Each 

Element Of Her Claim. 

1) The Ledge Posed an Unreasonable Risk of Harm

2) Antler Knew or Reasonably Should have Known of the Dangerous Ledge

3) Antler Never Warned of the Dangerous Ledge

4) Aranda Tripped on the Ledge 

B. The trial court erred in granting Antler’s Traditional Motion for Summary 

Judgment:

1) Antler Did not Present Evidence that Aranda’s Injures Not Caused by the 

Ledge or that They Warned Her

2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous 

Condition Caused Aranda’s Injury as Well as Whether Antler Breached Its 

Duty to Remedy the Condition
3

Statement of Facts

Aranda and her friends arrived at Antler Mini Storage around 6 pm on 

November 22, 2011. C.R. 72. Pg 32:19-22; Pg 33:2-4.1They had a full truck of 

things to pack into the newly rented ministorage unit. C.R. 122 Pg 39:20-21.

When they arrived Aranda got the key and locks from the manager. C.R. 75 Pg 

44:20-23. As she did, the manager apologized to Aranda for the poor lighting. C.R. 

76. Pg 48:24-49:4. Aranda and her friends then drove around to the unit to pack her 

things into the storage unit. C.R. 77 Pg 51:23-52:1.

Unbeknownst to her, the unit Aranda rented was unique. C.R. 97 Pg 10:22-

24. To enter the storage unit required a step up into the unit. C.R. 183. (photos of

the ledge). With large boxes in her arms Aranda packed things into the unit. Not 

knowing there was a ledge in the unit, she tripped and fell sometime between 6:20 

and 6:40 P.M. C.R. 70 Pg 16:10-12; C.R. 88 Photo 43; 49; C.R. 70 Pg 17:13-15.

As she fell she tried to protect herself, threw away the box she was holding and 

landed on her shoulder. C.R. 70 Pg 16:22-17:4. Karen, Aranda’s friend, saw her on 

the ground holding her shoulder. C.R. PG 45:9-13. Needing to continue packing 

things into the unit, she got back up and continued to move boxes into the unit. 

C.R. 127 Pg 45:9-13. She then drove back to Houston. C.R. 72 Pg 32:19-22.

 

1 Citations to Clerk’s Record will be identified as C.R. Citations to depositions pages and lines 

will be included when necessary. (C.R. XX Pg YY)
4

Aranda and her sister Patrica Birdwell returned to the storage unit later. C.R. 

80 Pg 73:21-74:2; C.R. PG 97 10:21-25. Upon her investigation she realized that 

she fell on a ledge at the entrance of the unit. C.R. 80 Pg 73:21-25. That ledge and 

the entire unit were much higher than the other units in the area. C.R. 97 Pg 10:22-

24. The ledge was entirely unmarked. C.R. 88 Photo 43; 49. The ledge and lighting

violated numerous buildings codes regarding the height of risers and general 

safety. C.R. 179-84.

Summary of the Argument

In response to Antler’s No-Evidence Motion for Summary Judgment Aranda 

presented evidence that a fact issue existed regarding all points of her claim. 

Aranada presented evidence that the condition was unreasonably dangerous based 

on the unusual nature of the ledge and the bad lighting. The ledge was higher than 

all the other units, unmarked, and a violation of local ordinances. Aranda presented 

evidence that Antler knew or should have known of the dangerous condition 

because Antler warned her partially of the danger and the condition existed for 

almost twenty years. Finally, Aranda presented evidence that she tripped on the 

ledge. Because of the presented evidence, Antler’s Traditional and No-Evidence 

Motion for Summary Judgment must be denied.

Moreover, Antler presented no evidence to support its Traditional Motion 

for Summary Judgment. Antler did not present evidence that Aranda’s injuries 
5

were not caused by the ledge. Antler also did not present evidence that they 

adequately remedied the danger by either warning of the danger or removing the 

condition. Antler presented inadmissible evidence that Aranda was at fault for her 

own injuries due to suspicion of marijuana use. The trial court correctly sustained 

Aranda’s objections to that evidence. Because Antler failed to meet its burden to 

show that no fact issue existed, the trial court should have denied Antler’s 

Traditional Motion for Summary Judgment.

Standard of Review

The standard for review of a traditional summary judgment is de novo. 

Dallas Cent. Appraisal Cen. V. Cunningham, 161 S.W.3d 293, 295 (Tex. App.—

Dallas 2005, no pet.). When reviewing a summary judgment the court must 

examine the entire record in the light most favorable to the nonmovant, and must 

indulge every inference and resolve all doubts against the motion. City of Keller v. 

Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005). With a hybrid motion the court first 

addresses whether the nonmovant presented evidence to controvert the no-evidence 

motion then moves to the lower standard of the traditional motion. Ford Motor Co 

v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2000).
6

Argument 

A. The Trial Court Erred in Granting Antler’s No-Evidence Motion for 

Summary Judgment Because Aranda Presented Evidence of Each Element of 

Her Claim

Antler raised issue with four of the six elements of Aranda’s premises claim. 

Wal-Mart Stores, Inc v. Gonzalez, 968 S.W.2d 924, 936 (Tex. 1998). A NoEvidence Summary Judgment can only be granted based on those elements 

specifically raised. TEX. R. CIV. P. 166a(i); Boerjan v. Rodriguez, 436 S.W.3d 307, 

310 (Tex. 2014).

1) The Ledge Posed an Unreasonable Risk of Harm

An unreasonably dangerous condition is one in which there is sufficient 

probability of a harmful event occurring that a reasonable prudent person would 

have foreseen the likelihood of that harmful event. Seideneck v. Cay Bayreuther 

Assocs., 451 S.W.2d 751, 754 (Tex. 1970). These are fact intensive inquiries, and 

therefore often best left to a jury’s determination. Reliable Consultants, Inc. v. 

Jaquez, 25 S.W.3d 336, 342 (Tex. App.—Austin 2000, pet. denied). Though not an 

objective test, courts often consider many factors including: 1) whether the 

condition was clearly marked; 2) the height of the condition; and 3) whether the 

condition met applicable safety standards. Cohen v. Landry’s Inc., 442 S.W.3d 

818, 827 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
7

Here, the combination of bad lighting and the step was an unreasonably 

dangerous condition. First, the condition was not marked in any way. C.R. 183 

(photographs showing no marking). Second, both the ledge and the poor lighting 

violated building codes adopted into law. C.R. 180. The riser heights, the tread 

depth, and the difference between them did not comply with building codes. C.R. 

180. The difference in riser heights was almost three times that which was allowed 

by regulation. C.R. 180. Finally, the ledge was unique for the unit. C.R 97 Pg 

10:22-24. The riser was too high and unexpected. Both the violation of safety 

standards and the unusual height is evidence of an unreasonably dangerous 

condition. Id. Antler’s employees admit that the bad lighting was a problem and 

apologized for the condition. C.R. 75 Pg 44:24-25. The ledge makes things worse. 

Moreover, the danger was foreseeable because stepping over the ledge was 

the natural course anyone would take into the unit. C.R. 183 (photographs showing 

the entrance). The ledge is made more dangerous by the common activity people 

would be doing in the area. It was an entrance, where people’s views would be 

obstructed by carrying or moving heavy objects. Because the evidence presented 

shows this was a dangerous, poorly lit step, Antler’s summary judgment must be 

denied.
8

2) Antler Knew or Reasonably Should Have Known of the Dangerous 

Ledge;

When plaintiff is an Invitee a possessor’s knowledge of a dangerous 

condition can be actual or constructive. Del Lago Partners v. Smith, 307 S.W.3d 

762, 769 (Tex. 2010). Proof of constructive knowledge requires that the condition

exist long enough for the possessor to discover it through reasonable inspection. 

CMH Homes, Inc v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2003). The “time-notice 

rule” is based on the premise that the longer a danger exists the more likely the 

owner had a reasonable opportunity to discover and remedy the condition. Id. 

Whether a reasonable time has passed is based on all facts and circumstances. Id.

Here, the construction was done in 1996. C.R. 180 (“Appraisal District 

reported 1996 construction date.”) This alone would give ample amount of time to 

inspect and determine that the ledge was dangerous. Id. Additionally, the Antler 

employee’s apology about the poor lighting shows that an inspection of the poorlylit area, including the ledge, was completed recently. Because Aranda presented 

evidence that Antler knew or should have known of the condition, its summary 

judgment must be denied.

3) Antler Never Warned of the Dangerous Ledge

As the possessor of real property, Antler had the duty to warn about or make 

safe any unreasonably dangerous conditions of which it or should have known. 

Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014). To be adequate, a 
9

warning must be more than a general warning instruction, but rather it must warn 

of the particular condition. Id. at 252. (citing TXI Operations, LP. v. Perry, 278 

S.W.3d 763, 764-65 (Tex. 2009)). The fundamental question is whether the 

warning fulfills the duty to do “whatever action is reasonably prudent under the 

circumstances to reduce or to eliminate the unreasonable risk from that condition.” 

Id. at 265. (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 

1983)). For example, a speed limit sign is not a warning for a pothole. Id. A 

warning to drive “slow” is not warning of the actual condition of a construction 

area which was muddy and slick when wet. State v. McBride, 601 S.W.2d 552, 

556-57 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.). A vague sign to “be 

careful” may be “some evidence that the premises owner was not negligent, but it 

is not conclusive.” TXI Operations, LP, 278 S.W.3d at 765. That an invitee 

followed the sign’s instructions and the incident still occurred is evidence of the 

warnings inadequacy. Id. 

First, there is evidence that Antler failed to fix the unreasonably dangerous 

condition. Norman Cooper determined that the riser heights, the tread depth, and 

the difference between the riser heights did not comply with cited building codes 

and laws. C.R. 180. Defendant therefore failed in every way to attempt to remedy 

the condition.
10

Second, the warning given by Antler regarding the ledge was completely 

deficient. Antler warned of the bad lighting. C.R. 76 Pg 48:24-49:4. No other 

warnings about the unit were given. C.R. 76 Pg 48:24-49:4. There was no marking

on the ledge. C.R. 183. Taking the context of the totality of the circumstances, 

Aranda was not warned of the inconspicuous and high ledge. See Henkel, 441 

S.W.3d at 252. It is impossible to infer that there was a dangerous ledge from the 

instruction about lighting. Compra, Id. (The warning “don’t slip” allows for the 

inference of a slippery walkway.). Moreover, Aranda’s behavior following the 

warning about lighting shows how inadequate the warning was. TXI Operations 

LP, 278 S.W.3d at 765. (Following the directive and still getting injured is 

evidence of the directive’s inadequacy.). Aranda, knowing only of the bad 

lighting, drove her truck around to the storage unit to improve the poor lighting 

condition. C.R. 75 Pg 45:1-2. Aranda then walked into the storage unit with boxes 

in hand, as would be expected, and tripped on the unexpected ledge. C.R. 70 Pg 

16:10-12. Because she was never warned of the ledge, Antler failed in its duty to 

warn of the unreasonably dangerous condition.

4) Aranda Tripped on the Ledge

To prove an action for premises liability, the invitee must establish the 

breach of duty proximately caused the plaintiff’s injuries. Del Lago Partners v. 

Smith, 307 S.W.3d 762, 767 (Tex. 2010). The components of proximate cause are 
11

(1) cause in fact and (2) foreseeability. Western Invs. v. Urena, 162 S.W.3d 547,

551 (Tex. 2005). If foreseeability is addressed under the element of duty, it need 

not be addressed again under proximate cause. Mellon Mortg. Co. v. Holder, 5 

S.W.3d 654, 659 (Tex. 1999) (plurality op.)

Cause-in-fact requires evidence that the premises defect was a substantial 

factor in bringing about the injury. Del Lago Partners., 307 S.W.3d at 774. Here, 

there is direct evidence that the premises defect caused the injury. Aranda testified 

that she “didn’t know there was an edge there and I hit it with my right foot and 

tripped into the storage room....” C.R. 70 Pg 16:10-12. At the time she did not 

know on what she fell. Id. Patricia, her sister that was unpacking the truck, saw 

Aranda on the ground after she fell. C.R. 97 Pg 7:6-9. She saw that Aranda tripped 

going into the unit. C.R. 98 Pg 11:6. She also thought that Aranda fell on the ledge. 

C.R. 98 PG 11:7. Karen Short, another friend that was loading the storage unit, 

heard Aranda fall at the storage unit. C.R. 113 Pg 9: 2-12. On later inspection 

Aranda and her sister realized it was the ledge on which she fell. Her sister 

identified that the ledge was much higher than the other units. C.R. 97 Pg 10: 21-

23. Based on this testimony Norman Cooper, a professional engineer, determined 

that the improper riser tread caused Aranda’s injury. C.R. 180. All this evidence 

points to the fact that Aranda tripped on the ledge.
12

Antler relies on two cases to characterize Aranda’s testimony as mere 

inference. Neither is factually on point. Marathon Corp was a decision about 

expert testimony and the necessity for something more. Marathon Corp v. Pitzner, 

106 S.W.3d 724 (Tex. 2003). In Marathon plaintiff alleged he fell off a roof, and 

was unable to testify as to what caused the fall. Id. at 726. The plaintiff presented 

evidence by experts showing he likely fell off the roof when he “reached into the 

access panel, came into contact with a high-voltage wire, was shocked, stumbled 

back, and fell off the building.” Id. at 729. The Texas Supreme Court, however,

determined that “because there was no proof that the units inside the building had 

been shut off” the series of events, though reasonable, was not supported by a key 

factual assumption. Id. The evidence “could give rise to any number of 

inferences.” Id. There was so little direct testimony that the jury would not even be 

sure if he fell off the roof. Id. It was equally likely that plaintiff had been assaulted 

because no one could testify to the contrary. Id. Slight circumstantial evidence is 

not enough, but rather “something else must be found in the record to corroborate 

the probability of the fact’s existence or non-existence.” Id. quoting Hammerly 

Oaks, Inc v. Edwards ̧ 958 S.W.2d 387, 392 (Tex. 1997). 

The other case on which Antler relies is Sweet v. Flow Force Plumbing, 

L.L.C. NO 05-12-01688-CV 2014, Tex. App. Lexis 5125 (Tex. App.—Dallas May 

13, 2014, no pet.). There, plaintiff used the shower after repairs were made by the 
13

defendant. Id. at *1. A full day after the shower, plaintiff pulled off his shoe to find 

his foot had been bleeding. Id. Looking around his home the next day, he noticed a 

screw in the shower. Id. He concluded that he must have cut his foot in the shower 

on the prior day. Id. The court followed Marathon, and determined there was not 

enough evidence to hold defendant liable because “it is equally possible that Sweet 

injured his foot during the period of time after his shower and before he remove his 

flip-flops that evening.” Id. at *6. There was no evidence that connected the injury 

to the shower temporally because there was no evidence that he was not injured 

between the shower and the time he noticed the bleeding. Id. Therefore, the court 

concluded there was not enough evidence to support the theory that plaintiff was 

injured in the shower.

Both cases are factually distinct because the death of direct testimony 

required more assumptions by the finder of fact. In each case the very basics of the 

injury were unclear. In Marathon there was no witness testimony identifying 

where the injury was, or how the injury happened. The jury could have easily also 

believed an assault had occurred. In Sweet he could have been injured by anything 

between the shower and the time he noticed his foot. Here, there is no question 

about several fundamental issues that were not known about either Marathon or 

Sweet.

 Aranda tripped C.R. 70 Pg 16:3-4.
14

 Aranda tripped around 6:20-6:40 C.R. 70 Pg 1:13-15

 Aranda tripped going into the storage unit owned by Antler. C.R. 98 PG 

11:6.

A similar recitation of facts could not be given about Marathon or Sweet. Each of 

these facts is backed by evidence and show that Aranda’s injuries were caused by 

the unreasonably dangerous condition. Therefore, Antler’s No-Evidence Motion 

for Summary Judgment must be denied. 

The degree of particularity in what caused the injury is also clear here and 

was not in either Marathon or Sweet. The greater the range of possible injuries, the 

more assumptions would naturally need to be made to show one thing caused an 

injury. Without knowing specific details, the realm of possibility expands. In 

Marathon, Pitzner was believed to be working on the roof, and then found later in 

the parking lot with a head injury. Marathon, 106 S.W.3d at 726. Based on just 

that information the possible causes of injury are endless. This is evidenced by the 

fact that EMS initially reported the injury as an assault. Id. Similarly in Sweet there 

was little direct evidence of what caused the injury. All that was known was 

plaintiff was injury free and then he was not. The nail was certainly a plausible 

source of the injury but there was little evidence actually placing it as the cause of 

injury. The possible other causes are endless.
15

Here, there is a fundamental piece of evidence that did not exist in the 

others. Several other people saw that she in fact did trip and where she tripped. The 

question is not how she was injured (like in Marathon) or where she was injured 

(like in Sweet) but on what did she trip on the Antler property at around 6:00 PM.

The evidence points to the ledge.

Antler would ask the court to hold that Aranda’s testimony is not evidence 

because she was not aware of what she tripped on at the time she tripped on it. 

That holding, and the conclusion that Aranda’s testimony (and the testimony of her 

friends) is not enough to present a fact issue, would dramatically change the 

evidentiary requirements of premises cases. Premises cases are built on inference. 

Plaintiffs do not trip on hazards of which they knew prior to tripping. Injured 

plaintiffs are often more worried about getting treatment over investigating 

premises liability issue. Only a Plaintiff’s lawyer would be so inclined. A 

requirement that a plaintiff immediately investigate the cause of the injury would 

ultimately bar any serious case where plaintiff is unable to investigate the incident 

due to seriousness of the injury or for other extenuating factors. It would also bar 

any case where plaintiff was injured without the benefit of a third party witness to 

see the specific cause of the injury. Such a ruling would gut premises liability. 

Therefore, this court must hold that Aranda presented a fact issue regarding 

whether her injuries were caused by the ledge.
16

Because Aranda presented evidence showing a fact issue regarding all

complained elements, Antler’s Traditional and No-evidence Motions for Summary 

Judgment must be denied.

B. The Trial Court Erred in Granting Antler’s Traditional Motion for 

Summary Judgment

1) Antler Did not Present Evidence that Aranda’s Injuries were Not 

Caused by the Incident or that they Warned her

In its Traditional Motion for Summary Judgment Antler presented 

arguments regarding only two elements: 1) causation; and 2) breach. C.R. 44-53.

Antler also addressed causation as it relates to Aranda’s negligence per se claim. 

C.R. 53. Because Antler did not raise the other issues the court cannot grant a 

summary judgment based on these elements. G&H Towing Co v. Magee ̧347 

S.W.3d 293, 297 (Tex. 2011).

Antler’s Traditional Motion for Summary Judgment cannot be granted 

because it failed to present testimony that it remedied the condition. “For a 

defendant to be entitled to summary judgment it must disprove, as a matter of law, 

one of the essential elements of each of plaintiff’s causes of action. Lear Siegler, 

Inc v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (emphasis in original). As 

discussed above, the only evidence presented about potential remedies to the 

condition was Antler’s apology about bad lighting. An inadequate warning is not 

conclusive evidence that no fact issue exists. TXI Operations, LP, 278 S.W.3d at 
17

765. Reasonable jurors could disagree about whether a warning about bad lighting 

is also a warning that a ledge is too high. Because Antler did not present evidence 

that it fulfilled its duty to remedy the condition as a matter of law its summary 

judgment must be denied.

Antler’s Traditional Summary Judgment must also be denied because it 

failed to present evidence that the premises defect caused the injury as a matter of 

law. Lear Siegler, Inc., 819 S.W.2d at 471. First, Antler failed to present evidence 

that no fact issue existed regarding the element of causation. The trial court 

correctly sustained Aranda’s objections to the evidence regarding the marijuana 

use and did not consider such evidence. C.R. 200. Antler is left without evidence 

more than “she was wobbly.” “Accidents happen” is argument, not evidence and 

therefore, Antler failed to present evidence to show no fact issue existed. Because 

Antler failed in its initial burden of presenting evidence that no fact issue existed 

regarding cause, Antler’s Summary Judgment must be denied.

2) A Fact Issue Exists Regarding Whether the Unreasonably Dangerous 

Condition Caused Aranda’s Injury as Well as Whether Antler 

Breached its Duty to Remedy The Condition.

As addressed above in response to Antler’s No-Evidence Motion for 

Summary Judgment, Aranda presented evidence that she tripped on the ledge as 

well as the fact that Antler’s only attempt to remedy the danger was to warn of half 

the danger. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013)
18

Presenting evidence to surpass the no-evidence motion also surpasses the 

traditional motion. Id. Because Aranda presented evidence of fact issues regarding 

all elements of her claim, Antler’s Motion for Summary Judgment must be denied.

Negligence Per Se 

The trial court incorrectly granted Antler’s Traditional Motion for Summary 

Judgment as to Aranda’s negligence per se claim. The duties that arise under a 

negligence and negligence per se claim are by definition distinct. Nixon v. Mr. 

Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) (looking to the 

ordinance rather than whether there was an unreasonably dangerous condition to 

see if a duty exists). Antler presents no evidence that this was not an issue of 

negligence per se. Evidence presented by Aranda shows that both the ledge and 

lighting violated local laws and ordinances. C.R. 179-184. Antler only addresses 

the issue of causation. Once again because Aranda showed that the ledge, violative 

of local laws and ordinances, was what caused her to trip, the trail court incorrectly 

granted Antler’s Traditional Motion for Summary Judgment.

Conclusion

In response to Antler’s no-evidence motion for summary judgment Aranda 

presented evidence that the ledge on which she tripped was an unreasonably 

dangerous condition. It was taller than the units around it, and a violation of local 

ordinance. Aranda also presented evidence Antler did not warn of the ledge, but 
19

merely warned of the bad lighting. It also did not mark, or attempt to remedy the 

ledge. The ledge also existed for approximately twenty years, certainly long 

enough for Antler to identify the dangerous condition. Finally, Aranda presented 

both her testimony, and the supporting testimony of her friends that she tripped on 

the dangerous ledge. The evidence presented is more than a stack of inferences, but 

the direct testimony of Aranda and her friends. Because Aranda presented evidence 

supporting all elements complained, Antler’s No-Evidence Motion for Summary 

Judgment must be denied.

Moreover, Antler failed to present evidence that no fact issue existed 

regarding whether they warned of the danger and whether the breach caused the 

injury. Antler only presented evidence that it warned of the lighting, not the ledge, 

which cannot support a summary judgment. It also presented no evidence that the 

ledge did not cause her to trip. Because Antler failed to present evidence to show 

no fact issue existed regarding the complained elements, its Traditional Motion for 

Summary Judgment must therefore be denied.

Prayer

Aranda never meant to trip. She did not do a pre-trip inspection analyzing 

possible hazards and their relative dangers. She did not do a post-trip inspection 

immediately following the incident testing for forensics or other clues to narrow 

down the inferences she may need to make in coming litigation. She tripped and 
20

tried, to get on with her life like normal. To require more of her belies the fact that 

law is built not of science but of humanity. 

For the reasons stated in the brief Appellant prays the Court reverse the 

order granting Antler’s Motion for Summary Judgment, and it remand the matter 

back to the trial court so that Susan Aranda may get her day in court.

Respectfully submitted,

THE CARLSON LAW FIRM, P.C.

11606 N. IH-35

Austin, Texas 78753

Telephone: (512) 346-5688

Fax: (512) 719-4362

By:_/s/ Robert L. Ranco

Robert L. Ranco 

SBN: 24029785 

Rranco@carlsonattorneys.com 

Roberto Flores 

SBN: 24074211 

Rflores@carlsonattorneys.com 
21

Certificate of Service

I certify that a true and correct copy of the foregoing was served in 

accordance with Texas Rules of Civil Procedure and Texas Rules of Appellate 

Procedure on this 16th day of December 2015 to all counsel of record.

Attorney: Served by

Sharon D. Hobbs

Hallen, Stein & Drurbin, PC

6243 IH-10 West

7th Floor

PO Box 101507

San Antonio, Texas 78201

__X_ Facsimile:

____ Email:

__X_ E-service:

____ CMRRR:

____ Other:

_/s/ Robert L. Ranco

Robert L. Ranco 

Certificate of Compliance

I certify that this document was produced on a computer using Microsoft Word 

2007 and contains 4,093 words as determined by the software’s word-count 

function, excluding the seconds of the document listed in Texas Rule of Appellate 

Procedure 9.4(i)(1).

/s/ Robert L. Ranco

Robert L. Ranco 

Roberto Flores 
22

Appendix

1) Order Granting Defendant’s Motion for Summary Judgment 

2) Order Sustaining Plaintiff’s Objection to Defendant’s Evidence
201

DC BK15212 PG763 

NO. D-1-GN-13-000525 

SUSAN ARANDA 

vs. 

THE CINDY SUE WILLIE PARTNERSHIP 

TRUST, and THE WILLIE LIMITED 

PARTNERSHIP D/B/A ANTLER MINI 

STORAGE 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Filed in The District Court 

of Travis County, Texas 

JUL 2 3 2015 0 

At /) t'8Q A_M. 

Velva L. Price, District Clerk 

IN THE DISTRICT COURT 

98TH JUDICIAL DISTRICT 

TRAVIS COUNTY, TEXAS 

ORDER GRANTING DEFENDANT'S, THE WILLIE LIMITED PARTNERSHIP D/B/A 

ANTLER MINI STORAGE, TRADITIONAL AND 

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 

ON THE 29th day of June, 2015, the Court heard Defendant's, THE WILLIE 

LIMITED PARTNERSHIP D/B/A ANTLER MINI STORAGE, Traditional and NoEvidence Motion for Summary Judgment. The Court considered Defendant's Motion 

and its supporting Affidavits and Exhibits, Plaintiff's Second Amended Petition, Plaintiff's 

Response to Defendant's Motion for Summary Judgment, argument of counsel, and all 

things the Court is entitled to consider, and GRANTS Defendant's Traditional and NoEvidence Motion for Summary Judgment. 

It is, therefore, ORDERED, ADJUDGED, AND DECREED that Defendant's 

Traditional and No-Evidence Motion for Summary Judgment is GRANTED; judgment is 

entered in favor of Defendant, THE WILLIE LIMITED PARTNERSHIP D/B/A ANTLER 

MINI STORAGE, and against Plaintiff. It is further ORDERED, ADJUDGED, AND 

DECREED that Plaintiff take nothing by her suit against Defendant, THE WILLIE 

LIMITED PARTNERSHIP D/B/A ANTLER MINI STORAGE, with costs to be incurred by 

the party incurring same.~ 

SIGNEDthe.z:i~f ~ ,2015 . 

. JUD~CHUM #1322613/5244-028/SH 

1111111111111111111111111111111111111111111111111111111 

004133733 
200

DC BK15212 PG764 

Filed in !he District Court 

of Travis County, Texas 

At JUL ~; 2015 c1J 

CAUSE No. D-1-GN-13-000525 - //0 () z1M 

Velva L p · - · · nee, District Clerk 

SUSAN ARANDA § IN THE DISTRICT COURT OF 

§ 

§ 

v. § TRAVIS COUNTY, TEXAS 

§ 

THE CINDY SUE WILLIE PARTNERSHIP § 

TRUST, AND THE WILLIE LIMITED § 

PARTNERSHIP D/B/A ANTLER MINI § 

STORAGE § 98TH JUDICIAL DISTRICT 

ORDER 

After careful consideration of the Plaintiffs Objections to Defendant's Traditional and 

No-Evidence Motion for Summary Judgment, the evidence, the pleadings and the arguments, the 

Court SUSTAINS Plaintiffs Objections to Defendant's references to an alleged drug use on the 

day of the incident and whether Plaintiff had a drug addiction. 

SIGNED on this 23rd day of July, 2015. 

~~~~ J!~JJIIIIIIIIIIIIIII/111111111111 1111111111111 

~------- Judge, 201 st District Court 

Travis County, Texas 

t