Opinion filed November 30, 2016

In The

Eleventh Court of Appeals 

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No. 11-14-00224-CV

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JAMIE CROSS, Appellant

V.

MARTHA AND JAMES EUGENE LITTLEFIELD, Appellees

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C45718

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

Jamie Cross, acting pro se, sued Martha and James Eugene Littlefield for 

negligence after Cross twisted her ankle and fell on a step at the Littlefields’ lake 

house. The Littlefields moved for summary judgment on both traditional and noevidence grounds. The trial court granted the Littlefields’ motion but did not 
2

specify the grounds for doing so. On appeal, Cross asserts that the trial court erred 

when it granted summary judgment in the Littlefields’ favor. We affirm.

I. Background Facts

Cross accompanied James Edward Littlefield to his parents’ lake house at 

Possum Kingdom Lake. The next day, Cross twisted her ankle and fell as she 

descended the porch’s single step. Cross asserted that the step was defective and 

unreasonably dangerous because the landing area of the step had a slope greater 

than eight percent, which she claimed did not comply with certain residential 

construction code standards. Cross also claimed that she could not see the 

defective condition of the step and that the Littlefields knew about the dangerous 

condition but did not warn her about it. Cross sustained injuries after she stepped 

off the one step and fell to the ground. She asserted that Martha and James Eugene 

Littlefield, as owners of the house, were responsible for her injuries.

Cross filed a pro se “complaint” on the day before limitations ran and had 

both Martha and James Eugene Littlefield served. Both timely answered with a 

general denial and special exceptions, which they later amended. Cross 

subsequently filed an “amended plea.” The Littlefields moved for summary 

judgment and attached an affidavit. Cross filed a response but did not attach any 

competent summary judgment evidence to her response. However, she did attach

some documents and a verification. The trial court held a hearing on the summary 

judgment motion and subsequently granted the Littlefields’ motion and dismissed 

Cross’s cause of action against them. Cross filed a motion for new trial, which was 

overruled by operation of law.

II. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). The movant for traditional summary judgment 
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must show that there is no genuine issue of material fact and that it is entitled to 

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & 

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant 

who moves for traditional summary judgment must either negate at least one 

essential element of the nonmovant’s cause of action or prove all essential 

elements of an affirmative defense. See Randall’s Food Mkts., Inc. v. Johnson,

891 S.W.2d 640, 644 (Tex. 1995).

When summary judgment is granted on traditional grounds, we take the 

evidence adduced in favor of the nonmovant as true and draw every reasonable 

inference and resolve all doubts in the nonmovant’s favor. Id. (citing El Chico 

Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987)). Once the defendant establishes 

a right to summary judgment as a matter of law, the burden shifts to the plaintiff to 

present evidence raising a genuine issue of material fact. City of Houston v. Clear 

Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979); see also Plunkett v. 

Conn. Gen. Life Ins. Co., No. 11-13-00129-CV, 2015 WL 3484985, at *4 (Tex. 

App.—Eastland May 29, 2015, pet. denied) (mem. op.). When the trial court’s 

judgment does not specify the grounds upon which it relied for its ruling, the 

judgment must be affirmed if any of the theories advanced are meritorious. Dow 

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Carr v. Brasher, 776 

S.W.2d 567, 569 (Tex. 1989); Barker v. Roelke, 105 S.W.3d 75, 82 (Tex. App.—

Eastland 2003, pet. denied). 

The party that files a no-evidence motion for summary judgment alleges that 

there is no evidence of one or more essential elements of a claim or defense on 

which the adverse party would have the burden of proof at trial. See TEX. R.

CIV. P. 166a(i). A no-evidence motion for summary judgment is essentially a 

motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 
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572, 581–82 (Tex. 2006) (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 

706, 711 (Tex. 1997)). Once such a motion is filed, the burden shifts to the 

nonmoving party to present evidence raising an issue of material fact as to the 

elements specified in the motion. Id.

III. Analysis

Cross claimed that the Littlefields had a duty to warn her about the slope of 

the step at the lake house or to make that allegedly dangerous condition safe and 

that, because they did not do either one, they were negligent and liable for her 

injuries. The Littlefields moved for summary judgment on traditional and noevidence grounds but did not specify which elements of negligence they claimed 

had no evidence. Consequently, Cross could not determine the specific elements 

that she was required to present evidence on to raise a material fact question, and 

the burden did not shift to her to raise a genuine issue of material fact on the 

challenged elements. Cf. Mack Trucks, 206 S.W.3d at 581–82; see TEX. R. CIV. P.

166a(i). Therefore, we will only address the Littlefields’ traditional motion for 

summary judgment. 

A. Negligence Cause of Action

Cross asserts a premises liability, negligence cause of action. “The elements 

of a negligence cause of action are a duty, a breach of that duty, and damages 

proximately caused by the breach of that duty.” Doe v. Boys Clubs of Greater 

Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The extent of the duty owed by an 

occupier of land depends on the legal status of the visitor. Motel 6 G.P., Inc. v. 

Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Olivier v. Snowden, 426 S.W.2d 545 (Tex. 

1968). The Littlefields moved for summary judgment because they asserted that,

as a matter of law, they owed no duty to Cross and that she had no claim against 
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them for negligence. As we explain below, we agree that the Littlefields owed no 

duty to Cross because she perceived the condition of the step. 

B. Cross was a guest of the Littlefields and, as a matter of law, 

was a licensee.

The Littlefields asserted that Cross was a licensee; James Edward 

Littlefield attested in his summary judgment affidavit that Cross was his guest at 

the lake house. “A licensee is a person who is privileged to enter or remain on 

land only by virtue of the possessor’s consent.” Dominguez v. Garcia, 746 S.W.2d 

865, 866 (Tex. App.—San Antonio 1988, writ denied) (quoting RESTATEMENT 

(SECOND) OF TORTS § 330 (1965)). Thus, a licensee is one who enters with 

permission of the landowner, but does so for his own convenience or on business 

for someone other than the landowner. Smith v. Andrews, 832 S.W.2d 395, 397 

(Tex. App.—Fort Worth 1992, writ denied).

In response to the Littlefields’ licensee argument, Cross filed a response to 

their motion, which included the statement, “True, I was a guest of their son 

[James].” We note that responses are not evidence. Nicholson v. Mem’l Hosp. 

Sys., 722 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d 

n.r.e.). We also note that a response is not a pleading and that a pleading is not 

evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 

660 (Tex. 1995); Clear Creek Basin Auth., 589 S.W.2d at 678; see also

Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and 

Federal Practice, 52 Hous. L. Rev. 773, 821 n.341 (2015) (“[W]e refuse to regard 

pleadings, even if sworn, as summary judgment evidence.” (alteration in original) 

(quoting Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971))).

But certain statements in pleadings can be admissions. “Assertions of fact, not 

[pled] in the alternative, in the live pleadings of a party are regarded as formal 
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judicial admissions.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 

568 (Tex. 2001) (quoting Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 

(Tex. 1983)). A judicial admission that is clear and unequivocal has conclusive 

effect and bars the admitting party from later disputing the admitted fact. Id.

(citing Gevinson v. Manhattan Constr. Co. of Okla., 449 S.W.2d 458, 467 (Tex.

1969)). Although Cross’s statement in her response was not in a pleading, her 

statement, “True, I was a guest of their son [James],” is a judicial admission. See 

id. (statements in summary judgment response were judicial admissions). 

But even if we are incorrect, Cross was nonetheless a licensee, as a matter 

of law. The definition of a licensee, as a matter of law, is outlined in Mendez v. 

Knights of Columbus Hall, 431 S.W.2d 29, 31 (Tex. Civ. App.—San Antonio 

1968, no writ). The court in Mendez held that a woman who had entered a dance 

hall, walked toward the dance floor, twisted her ankle, and fallen on “a step down”

that led to the dance floor was a licensee because she was the guest of her husband, 

a band musician who performed at the hall. 431 S.W.2d at 31. The woman had 

never been to the dance hall before, and she was not aware of the step down. Id. 

But she could see, as all could, that the dance floor was obviously lower than the 

area where she had been seated. Id. The Mendez court held, in a summary 

judgment proceeding, that as a matter of law she was a licensee. Id. at 32. Even if 

Cross’s statement is not a judicial admission, the undisputed facts unequivocally 

demonstrate that she was a guest and a licensee.

 C. Duty Owed to Cross as a Licensee

Cross, as a licensee, takes the premises as she finds them, and the Littlefields 

owe no duty to maintain the premises in a reasonably safe condition. See Silva v. 

Spohn Health Sys. Corp., 951 S.W.2d 91, 96 n.4 (Tex. App.—Corpus Christi), writ 

denied, 960 S.W.2d 654 (Tex. 1997); Weekes v. Kelley, 433 S.W.2d 769, 773 (Tex. 
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Civ. App.—Eastland 1968, writ ref’d n.r.e.). Instead, the duty that an owner owes 

to a licensee is to not injure him by “willful, wanton or grossly negligent conduct, 

and . . . [to] use ordinary care either to warn a licensee of, or to make reasonably 

safe, a dangerous condition of which the owner is aware and the licensee is not.” 

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 

1992); see Weekes, 433 S.W.2d at 772–73.

D. The Littlefields owed no duty to Cross, as a matter of law, because 

one can infer from her admissions that she perceived the condition 

of the step.

The existence of a legal duty is a question of law. TXI Operations, L.P. v. 

Perry, 278 S.W.3d 763, 765 (Tex. 2009). “Duty is the threshold inquiry; a plaintiff 

must prove the existence and violation of a duty owed him by the defendant to 

establish liability in tort.” Silva, 951 S.W.2d at 94 (citing El Chico Corp., 732 

S.W.2d at 311). In other words, a licensor owes no duty to a licensee as long as 

the evidence conclusively establishes that the licensee perceived the allegedly

dangerous condition. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 

2003). Cross asserts that she did not perceive the dangerous condition of the step, 

while the Littlefields assert that she did perceive the step’s condition.

In her “complaint” and her response to the motion, Cross alleged that the 

step was uneven, had an improper slope, and had no warnings, which made it 

unreasonably dangerous. Nevertheless, as we previously explained, her allegations 

in her “complaint” and her response to the motion for summary judgment that

outline dangerous conditions with the step and her allegation of lack of knowledge 

about those conditions are not evidence. Nicholson, 722 S.W.2d at 749; Keenan v. 

Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex. App.—Houston [14th Dist.] 

1988, no writ.). “[S]elf-serving, speculative and conclusory statements of fact or 
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law are insufficient to raise an issue of fact.” Los Cucos Mexican Café, Inc. v. 

Sanchez, No. 13-05-578-CV, 2007 WL 1288820, at *2 (Tex. App.—Corpus Christi 

May 3, 2007, no pet.) (mem. op.) (citing McIntyre v. Ramirez, 109 S.W.3d 741, 

749–50 (Tex. 2003); Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997) 

(finding that conclusory statements that are unsupported by facts are not proper 

summary judgment proof); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 

1984)).

The only items that can be considered as summary judgment evidence that 

the Littlefields attached to their motion were James Edward Littlefield’s affidavit, 

a photo of the step, and another photo, but James Edward did not describe, in his 

affidavit, the step’s condition or state that Cross perceived that condition. Cross 

also filed a photo of the step and the porch. The Littlefields argued in their motion 

and on appeal that the step’s condition was perceptible and obvious to anyone who 

looked at it.

The Texas Supreme Court addressed the issue of knowledge of a condition 

in a premise liability case that involved a man who fell on some steps at a WalMart store. Miller, 102 S.W.3d at 709. In Miller, Wal-Mart hired a plumbing 

company to complete some work at a store. Id. at 707. One of the employees of 

the plumbing company accompanied a Wal-Mart employee to the storeroom that 

had a stairway that led to the water lines and shut-off valve. Id. Miller saw other 

employees of Wal-Mart unloading and placing boxes on the stairs. Id. Miller led a 

coworker up the stairs and noticed that the stairs were “slippery or slick.” Id. at 

708. When Miller went back down the stairs, he let go of the handrail to walk 

around the boxes and fell. Id. He sued Wal-Mart under a premises defect theory.

Id. Miller did not dispute that he saw the boxes before he ascended the stairs and 

knew that the stairs were slippery. Id. When he descended, he saw that the boxes 
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obstructed his access to the handrail. Id. The Texas Supreme Court noted that 

Miller “recognized all these factors—the very factors he alleges created a 

dangerous condition—before he fell on the stairs.” Id. at 710. The evidence, 

therefore, established that, “prior to his fall, Miller perceived and thus had actual 

knowledge of the dangerous condition.” Id. Accordingly, Wal-Mart did not have 

a duty to warn or make the premises safe. Id.; see also Osadchy v. S. Methodist 

Univ., 232 S.W.3d 844, 853 (Tex. App.—Dallas 2007, pet. denied) (no duty where 

musician testified that he had seen conditions of stairs and used them before he

tripped and fell; plaintiff had same knowledge as defendant).

Cross stated in her response that the “[step] is easily visible[] when 

approaching during the day time [sic].” Cross also stated in her response, “Yes, 

when [one] applies the ‘open & obvious’ [standard,] one does not have to look 

long to see that the step is dangerous.” Cross further stated in her response that 

“A CHILD OF KINDERGAR[T]EN AGE WOULD KNOW THAT THE STEP 

WAS DANGEROUS[] IF THE [CHILD] ARRIVED DURING THE DAY.” As 

we did with her statement about being a guest, we hold that Cross’s statements 

about the step’s visibility and perceptibility are judicial admissions. See Holy 

Cross Church of God in Christ, 44 S.W.3d at 568. Cross argued that, because she 

did not go up the step in the daylight, she could not have perceived its condition, 

but Cross also stated that she stepped outside the lake house in the morning and 

briefly spoke to James Edward Littlefield before she stepped off the single porch 

step and fell to the ground. In that time that she spoke to him, when she stood on 

the porch near the step, she said that she “looked down,” so one can infer that a 

reasonable person, having looked down at the step, would have perceived the 

step’s condition. She said that “one does not have to look long to see that the step 

is dangerous,” and she did not limit that statement to the daytime. And similar to
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the Miller case, Cross had gone up the step the night before, and the next day, she 

stopped on the porch and looked down before she stepped off the step; therefore, as 

a matter of law, Cross perceived the step’s condition. As a result, the Littlefields

owed no duty to her. See Miller, 102 S.W.3d at 709; Osadchy, 232 S.W.3d at 853.

The trial court did not err when it granted summary judgment in favor of the 

Littlefields. We overrule Cross’s sole issue on appeal.

IV. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE 

November 30, 2016

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.