TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00439-CV

April Brockwell Marek and John Brockwell, Each Individually and as 

Representative of the Estate of Justin Brockwell, Deceased, Appellants

v.

Jamie Slayden and David Slayden, Appellees

FROM THE 146TH DISTRICT COURT OF BELL COUNTY

NO. 305,859-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

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

April Brockwell Marek and John Brockwell, individually and as representatives

of the estate of Justin Brockwell (collectively, “the Brockwells”) filed suit against Jamie Slayden 

and David Slayden (collectively, “the Slaydens”) asserting statutory wrongful death and survival 

actions based on the death of their son, Justin Brockwell. See Tex. Civ. Prac. & Rem. Code 

§§ 71.004 (parents of decedent may sue to recover their own damages resulting from decedent’s 

death); .021 (providing for survival of cause of action by which decedent may have sought 

recovery for personal injuries, pain and suffering, and other damages suffered before death).1

The Slaydens filed a motion for summary judgment, which the trial court granted. The 

1

 As part of their statutory wrongful death and survival claims, the Brockwells were 

required to establish that a wrongful act occurred. McCullough v. Godwin, 214 S.W.3d 793, 805 

(Tex. App.—Tyler 2007, no pet.); see also Tex. Civ. Prac. & Rem. Code §§ 71.002(b), .021.

The Brockwells contended that there are three wrongful acts at issue here: (1) general 

negligence; (2) conduct giving rise to liability for premises defect; and (3) gross negligence.
2

Brockwells appeal, arguing that they raised genuine issues of material fact as to each of their 

claims. We affirm the summary judgment.

BACKGROUND

Justin Brockwell was driving a car on FM 436 in Bell County when he lost 

control of the vehicle and crashed into a cement culvert adjacent to the roadway in the right-ofway owned by the Texas Department of Transportation (TxDOT). The Brockwells alleged that 

the culvert had a vertical face that was at a 90-degree angle to the ground rather than a sloped 

face that “would have allowed his vehicle to safely drive over the culvert.”

The Brockwells sued the Slaydens, who owned property off FM 436 that they 

accessed using a driveway that passed over the culvert that Justin Brockwell crashed into. To 

support their wrongful death and survival claims, the Brockwells asserted causes of action for 

negligence, gross negligence, and premises liability. The Brockwells alleged that the Slaydens 

breached their duty of care and proximately caused Justin Brockwell’s death by:

a. failing to properly adhere to the construction plans for the culvert;

b. failing to adhere to proper industry standards in the construction of the culvert;

c. failing to provide Justin Brockwell with a safe culvert in the event evasive 

action was required; and

d. permitting an unreasonably dangerous condition to exist on the premises.

The Slaydens filed traditional and no-evidence motions for summary judgment asserting that the 

Brockwells had no claim for general negligence because their negligence claim sounds solely in 

premises liability. The Slaydens also maintained that they owed no duty to Justin Brockwell 

because they did not own or control the culvert, nor did they design, construct, or modify the 
3

culvert, which was built before they purchased the property accessed by the driveway over the 

culvert. The Slaydens further argued that they had no duty to make any changes to the culvert 

because they were not notified and ordered by TxDOT to implement any changes nor had they 

constructed or reconstructed the access driveway. The Slaydens asserted that they did not breach 

any duty willfully, wantonly, or through gross negligence nor did they proximately cause Justin 

Brockwell’s injuries.

The Slaydens attached evidence to their motion for summary judgment, including 

the affidavit of Soloman Thomas, a TxDOT Area Engineer, who averred that (1) the concrete 

culvert is located in the TxDOT highway right-of-way; (2) the culvert was originally built 

before 2009, the year that the Slaydens purchased their property; and (3) all construction of or 

modifications to access driveways such as the Slaydens’ can only legally be made with TxDOT’s 

approval. Thomas further averred that landowners are not required to make changes or updates 

to existing access driveways to comply with evolving TxDOT safety standards unless ordered to 

do so or unless they construct or reconstruct an access driveway.

The Brockwells filed a response to the motions for summary judgment, arguing 

that the motions should be denied because (1) the Slaydens had a duty to warn emergency 

trespassers or licensees of known, dangerous conditions on the premises, (2) the Slaydens failed 

to alert Justin Brockwell about the “deadly culvert,” (3) the culvert was an unreasonably 

dangerous condition, and (4) the Slaydens failed to make the culvert reasonably safe for Justin 

Brockwell and others similarly situated. The Brockwells also maintained that the Slaydens had 

possession and control of the culvert.
4

After the hearing, the trial court granted the Slaydens’ motions for summary

judgment without specifying the grounds on which it relied and rendered judgment that the 

Brockwells take nothing on their claims against the Slaydens. This appeal followed.

DISCUSSION

We review the granting of a motion for summary judgment de novo.2 Buck v. 

Palmer, 381 S.W.3d 525, 527 (Tex. 2012). When the trial court does not specify the grounds for 

its ruling, summary judgment must be affirmed if any of the grounds on which the judgment was 

sought are meritorious. State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents 

in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).

On appeal, the Brockwells argue that summary judgment was improper because 

they raised genuine issues of material fact regarding the challenged elements of each of their 

claims. The Slaydens counter that, as a matter of law, they are entitled to summary judgment 

on the Brockwells’ general negligence claim because the pleadings do not allege a cause of 

action for general negligence but instead could only reasonably be construed to allege a 

premises-liability claim. We first consider whether the Brockwells asserted a viable general 

negligence claim.

Under Texas law, a person injured on another person’s property has two potential 

causes of action: (1) a negligence claim for negligent activity on the premises, or (2) a premises 

liability claim for an unreasonably dangerous condition on the premises. Alvarez v. Salazar2

 The standards for reviewing a summary judgment are well established and undisputed 

on appeal. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also 

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth 

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i). Accordingly, we need 

not repeat them here.
5

Davis, No. 13-18-00366-CV, 2019 WL 5445215, at *4 (Tex. App.—Corpus Christi-Edinburg 

Oct. 24, 2019, no pet.) (mem. op.) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 

1992)). Although premises liability is a form of negligence, “[n]egligence and premises liability 

claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, 

albeit similar, elements to secure judgment in their favor.” DeLamar v. Fort Worth Mountain 

Biker’s Ass’n, No. 02-17-00404-CV, 2019 WL 311517, at *3 (Tex. App.—Fort Worth Jan 24, 

2019, pet. denied) (mem. op.) (quoting United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 

(Tex. 2017)); see also Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997)

(stating that “[b]ecause premises defect cases and negligent activity cases are based on 

independent theories of recovery, a simple negligence [jury] question . . . cannot support a 

recovery in a premises defect case”).

Negligent-activity and premises liability claims “involve closely related but 

distinct duty analyses.” United Scaffolding, 537 S.W.3d at 471. Premises liability is a “special 

form of negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status on 

the premises at the time of the incident.” DeLamar, 2019 WL 311517, at *3 (quoting Wyckoff v. 

George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.—Dallas 2011, no pet.)

(citing Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010))). To prevail on a 

premises liability claim, a plaintiff must prove (1) actual or constructive knowledge of some 

condition on the premises by the owner; (2) that the condition posed an unreasonable risk of 

harm; (3) that the owner of the premises did not exercise reasonable care to reduce or eliminate 

the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s 

injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the

common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person 
6

to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach, 

Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

A person injured on another’s property may have either a premises liability 

claim or a negligence claim against the property owner. Occidental Chem. Corp. v. Jenkins, 

478 S.W.3d 640, 644 (Tex. 2016). However, only one theory of recovery is available for any 

given set of facts. Keetch, 845 S.W.2d at 264. The lines between negligent activity and 

premises liability are sometimes unclear, since almost every artificial condition can be said to 

have been created by an activity. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 

(Tex. 2010). Therefore, determining whether a claim is one for a premises defect or general 

negligence “can be tricky.” DeLamar, 2019 WL 311517, at *4 (quoting Austin v. Kroger Tex. 

L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 

2015)). The policy undergirding this distinction is that negligence encompasses a malfeasance 

theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises 

liability encompasses a nonfeasance theory based on the owner’s failure to take measures to 

make the property safe. See Del Lago Partners, 307 S.W.3d at 776; see also Timberwalk 

Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (explaining that negligent 

activity concerns “simply doing or failing to do what a person of ordinary prudence in the same 

or similar circumstances would have not done or done” while premises liability concerns “the 

failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a 

premises condition which the owner or occupier of [land] knows about or in the exercise of 

ordinary care should know about”). To determine on which side of the line a claim falls, Texas 

courts look to whether the activity that caused the condition was ongoing or had ceased when the 

injury occurred. See Occidental Chem., 478 S.W.3d at 644; Keetch, 845 S.W.2d at 265.
7

Theoretically, a litigant may maintain causes of action for both general negligence 

and premises liability. DeLamar, 2019 WL 311517, at *4. However, to be viable, the general 

negligence theory of recovery must be based not on an injury resulting from the condition of the 

property, but on the defendant’s contemporaneous activity. Id.; see Mangham v. YMCA of 

Austin, Tex.-Hays Communities, 408 S.W.3d 923, 929 (Tex. App.—Austin 2013, no pet.) (“A 

litigant may maintain causes of action for both general negligence and premises liability but 

under the general-negligence theory of recovery, the claimant’s injury must result from the 

defendant’s contemporaneous activity.”). The “Texas Supreme Court has held that a premisedefect claim for purposes of the TTCA, as with the common law, is distinguished by ‘a 

nonfeasance theory based on the owner’s failure to take measures to make the property safe,’

focusing on injury from a ‘condition’ of real property, as contrasted with ‘affirmative, 

contemporaneous conduct by the owner that caused the injury.’” Texas Facilities Comm’n v. 

Speer, 559 S.W.3d 245, 256 (Tex. App.—Austin 2018, no pet.) (quoting Sampson v. University 

of Tex., 500 S.W.3d 380, 388 (Tex. 2016)).

Thus, while premises liability encompasses a nonfeasance theory based on the 

owner’s failure to take measures to make the property safe, negligent activity is a malfeasance 

theory based on affirmative, contemporaneous conduct by the owner that caused the injury. 

Alvarez, 2019 WL 5445215, at *4. Here, the Brockwells’ claim does not arise out of any

negligent activity by the Slaydens but, instead, is a premises liability claim sounding in 

nonfeasance. See Castro v. H.E.B. Grocery Co., L.P., No. 14-18-00277-CV, 2019 WL 2518481, 

at *4 (Tex. App.—Houston [14th Dist.] June 18, 2019, no pet.) (“Here, the Castros’ negligence 

claim arises from an allegation of nonfeasance rather than any claim of malfeasance on HEB’s 

part.”). All of the allegedly negligent acts the Brockwells identify in their amended complaint 
8

involve some failure to do something rather than affirmative and contemporaneous conduct by 

the Slaydens. The Brockwells alleged that Justin Brockwell was injured when his car collided 

with the vertical face of the culvert, which they contend constituted a dangerous condition 

known to the Slaydens that they failed to warn of or make reasonably safe. The Brockwells did 

not allege that Justin Brockwell was injured by any negligent activity on the Slaydens’ part. See 

Timberwalk Apartments, 972 S.W.2d at 753 (stating that claimant did not allege she was injured 

“by or as a contemporaneous result of any activity of defendants” so required to state a 

negligent-activity claim). Moreover, there is no evidence that any contemporaneous, ongoing

activity on the premises caused Justin Brockwell’s death. The evidence established that the 

culvert was in the same condition that it had been since before the Slaydens purchased the 

property in 2009 and that they had not altered it in any way before Justin Brockwell crashed into 

it. The condition of the culvert did not result from any contemporaneous, ongoing activity.

Because the Brockwells’ general negligence claim does not sound in negligent activity, we 

conclude that it fails as a matter of law. The trial court properly granted summary judgment in 

the Slaydens’ favor on the general negligence claim.

Premises liability

We next consider whether the trial court erred in granting the summary judgment 

motion as to the Brockwells’ premises liability claim. The Slaydens’ motion for summary 

judgment asserted that they were not liable as a matter of law because they did not own, control, 

or have a right of control over the culvert at issue in this case. In support of their motion, the 

Slaydens offered summary-judgment evidence establishing that the culvert was in the right-ofway owned by TxDOT, that the Slaydens did not maintain the culvert itself, that the Slaydens did 
9

not design or construct the culvert, and that they were not permitted to make any modification to 

either the access driveway or the culvert without TxDOT’s approval. On appeal, the Brockwells 

argue that although the culvert is “legally” owned by TxDOT, the Slaydens exercised sufficient 

control over the culvert to be under the same duty as the owner to keep the premises in a safe 

condition. See City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986). The Brockwells point 

to evidence that the Slaydens mowed and otherwise maintained the driveway and grass 

surrounding the culvert and that they had at one time placed decorative lights on the driveway 

above the culvert. The Brockwells also note that after the culvert was damaged by Justin 

Brockwell’s vehicle, the Slaydens coordinated its repair, which the Brockwells assert is evidence 

that the Slaydens exercised control of the culvert.

As an initial matter, evidence that the Slaydens mowed the area around the culvert 

and used and maintained the access driveway that ran over the culvert does not constitute 

evidence that the Slaydens controlled the culvert itself. “The relevant inquiry is whether the 

defendant assumed sufficient control over the part of the premises that presented the alleged 

danger so that the defendant had the responsibility to remedy it.” County of Cameron v. Brown, 

80 S.W.3d 549, 556 (Tex. 2002). Furthermore, the evidence established that the Slaydens had to 

seek and obtain approval from TxDOT to make any repairs or modifications to the culvert, which 

was located in TxDOT’s right-of-way. As the Slaydens point out, the need to obtain permission 

to make changes to the culvert establishes the opposite of control over the culvert. See Rosenthal 

v. Boyd, No. 03-11-00037-CV, 2013 WL 1876513, at *5 (Tex. App.—Austin May 1, 2013, 

no pet.) (mem. op.). In Rosenthal, this Court held that uncontroverted and undisputed summaryjudgment evidence that the City of Austin, rather than the defendants, owned the right-of-way 

where the allegedly dangerous condition existed coupled with the fact that the City code 
10

prohibited anyone from making improvements in the City’s right-of-way demonstrated that the

defendants did not exercise control over the premises necessary to give rise to a duty to the 

plaintiff. Id.; see also Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762 (Tex. App.—

Houston [1st Dist.] 1994, no writ) (holding that the premises owner’s duty does not extend 

beyond the limits of premises owners’ control). Because the evidence conclusively establishes 

that the Slaydens did not own or control the culvert, the trial court properly granted their motion

for summary judgment on the Brockwells’ premises liability claim.

Gross negligence

In addition to their general negligence claim, the Brockwells asserted that the

Slayden’s conduct constituted gross negligence as that term is defined in the Texas Civil Practice 

and Remedies Code section 41.011(11)(a)-(b). See Tex. Civ. Prac. & Rem. Code § 41.011(11). 

Gross negligence requires an objective element and a subjective element. Boerjan v. Rodriguez, 

436 S.W.3d 307, 311 (Tex. 2014); see Tex. Civ. Prac. & Rem. Code § 41.001(11). First,

“viewed objectively from the actor’s standpoint, the act or omission complained of must involve 

an extreme degree of risk, considering the probability and magnitude of the potential harm to 

others.” Boerjan, 436 S.W.3d at 311. Second, “the actor must have actual, subjective awareness 

of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or 

welfare of others.” Id. Under the objective element, an “extreme risk” is not a remote possibility

of injury or even a high probability of minor harm, but “the likelihood of serious injury to the 

plaintiff.” Id.; Crooks v. Moses, 138 S.W.3d 629, 640 (Tex. App.—Dallas 2004, no pet.). Under 

the subjective element, actual awareness means the defendant knew about the risk, but his acts or 

omissions demonstrated he did not care. Boerjan, 436 S.W.3d at 311.
11

After reviewing the summary judgment evidence, we conclude that the evidence 

presented does not raise a fact issue regarding whether the Slaydens were subjectively aware 

of an extreme degree of risk presented to motorists by the culvert. The Brockwells asserted 

that Justin Brockwell “unintentionally veered” off the road before striking the culvert, that the 

Slaydens were grossly negligent because they had actual, subjective awareness of the risk that a 

motorist would veer off the road and crash into the culvert, and that their failure to modify the 

culvert in the TxDOT right-of-way demonstrated that they did not care. The evidence on which 

the Brockwells rely to support the subjective element of their gross negligence claim are two

previous events that occurred on the roadway at or near the Slaydens’ property. In the first 

incident, an intoxicated driver veered off the opposite side of the road from their driveway and 

hit the Slaydens’ mailbox. In the second incident, a truck “crashed and flipped” when it hit a 

culvert up the road from the Slaydens’ property. The summary judgment evidence, however, 

does not show that the truck “flipped over” and, in fact, the deposition testimony submitted was 

that the truck did not flip over. Moreover, the summary judgment evidence does not include 

testimony that the Slaydens knew whether the culvert up the road was designed like the one at 

issue in this case. The only summary judgment evidence was Jamie Slayden’s testimony that 

she believed the other culvert was “pipe and dirt” and did not recall how it was designed.

Additionally, there was no evidence submitted to suggest that either driver suffered any serious

bodily harm. Although the Brockwells argue that Jamie Slayden admitted that a culvert with a 

90-degree face can be dangerous and that sloped culverts are designed to promote safety when 

vehicles veer off the road, Jamie Slayden’s deposition testimony submitted to the trial court was 

that any accident can be dangerous, that this accident ended up being dangerous, and that sloped 

culverts “possibly” are designed for safety purposes. This evidence fails to raise a fact issue as 
12

to whether the Slaydens were subjectively aware of any extreme risk to motorists posed by the 

culvert when the accident occurred as opposed to after it.

Moreover, even if the evidence raised a fact issue as to whether the Slaydens were 

subjectively aware of an extreme risk to motorists posed by the culvert, there was no evidence 

that they were consciously indifferent to it. Although the Brockwells argue that the Slaydens 

should have either modified the culvert or put up a warning sign about it, the evidence submitted 

to the trial court was that the Slaydens did not create or control the condition of the culvert. The 

evidence was that the culvert was subject to TxDOT oversight and that the Slaydens could not 

make alterations without TxDOT approval. Additionally, the Brockwells assert that the Slaydens 

had a duty to make the culvert safe by installing warning signs and reflectors, but there was no 

evidence that the proposed warning signs or reflectors would have prevented a vehicle from 

“unintentionally veering” off the roadway during the daylight and crashing into the culvert.

We conclude that the summary judgment evidence does not raise a fact issue regarding whether 

the Slaydens were aware of and indifferent to an extreme risk to motorists posed by the culvert.

The trial court properly granted the motion for summary judgment on the Brockwells’ gross 

negligence claim.3

3

 The Brockwells argue for the first time on appeal that public policy supports imposing 

liability on property owners such as the Slaydens under the facts of this case. These policy based 

arguments were not presented to the trial court and are not preserved for appellate review. See 

Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, 

answer or other response shall not be considered on appeal as grounds for reversal.”); McConnell 

v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“[I]ssues a non-movant 

contends avoid the movant’s entitlement to summary judgment must be expressly presented by 

written answer to the motion or by other written response to the motion . . . .”). Moreover, to the 

extent the Brockwells urge this Court to impose duties beyond those currently recognized by 

the relevant caselaw, we would decline to do so. See Petco Animal Supplies, Inc. v. Schuster, 

144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.) (“As an intermediate appellate court, we 

are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas 
13

CONCLUSION

For the reasons stated in this opinion, we affirm the trial court’s judgment.

__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Affirmed

Filed: January 7, 2022

Supreme Court unless and until the highest court overrules them or the Texas Legislature 

supersedes them by statute.”). “We must, in short, follow the existing law rather than change it, 

and we have adhered to that basic limiting principle in a variety of contexts.” Anderson v. 

Archer, 490 S.W.3d 175, 177 (Tex. App.—Austin 2016), aff’d sub nom. Archer v. Anderson, 

556 S.W.3d 228 (Tex. 2018).