### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00372- CV

Holly Dees, Appellant

v. Speedy Th om as and Sylvia T hom as, Appellees

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 15- O- 294, H ONO RAB LE CHRI S SCH NEIDER, JUDGE P RESIDING

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

This appea l arises out of a premi s es l i ability suit. I n J uly 2013, Holly Dee s was at the house of Speedy and Sy lvia Thomas (the Homeowne rs) to cele brate J uly 4th an d t o visit the
Homeowne rs’ daug hter Stacy Thomas when she slipped and fell on a two-step stairway connec ting the kitchen and li v i n g ro o m. Dee s sued for premises liability

. The Homeowne rs moved for
summary judgme nt, asser

ting that there was no duty to war n or to make the condition rea sonably safe beca use any alleg edly dang erous condition was open and obvious or otherwise known to Dee s. The trial court rende red final summary judgme nt, concluding that the Homeowne rs ar e entitled to judgme nt as a matter of law and that Dee s should take nothing ag ainst the Homeowne rs. For the

rea sons discussed below, we aff irm.I. P ROCEDURAL HISTORY
I n J uly 2015, Dee s sued the Homeowne rs for premises liability

. As descr ibed in her orig inal petition, she “ente red the kitchen and, as she proce eded to walk down the stairs, fell due to

a larg e and/or non-standar d g aps in betwee n the stairs/steps.” The Homeowne rs moved for traditional su m m ar y j u d g ment on the grounds that there is no duty to war n or t o make reasona

bly safe beca use Dees was a li cense e, n o t an invitee, and the allege dly dang erous condition was open and obvious or otherwise known to Dee s from her previous use of the stairway

. As summary judgme nt evidenc e, the Homeowne rs attached: (1) the secon d am en ded petiti on, the l ive petit ion
at the time; (2) Dee s’s deposition transcr ipt; and (3) the following photo of the stairway , marke d by
Dee s at her de position t o show wher e she ha d stepped during the incident.

2Dee s responde d with her own motion for partial traditional summary judgme nt. She

attache d as evidenc e: (1) the deposition transcri p t s fr o m the Homeowne rs, (2) an aff idavit from Stacy Thomas, (3) an aff

idavit from Dee s’s arc hitecture expert J im Sealy with attache d photos of the stairway , and (4) an excerpt from the I nterna tional Building Code Commentary

. The Homeowne rs 1

o b j ec t ed to Dee s’s summary judgme nt evidenc e on multipl e g rounds. Dee s also filed her th i rd amende d petition, revising the rea son for her fall and claiming she “fe ll due to faulty re- constructe d 2 stairs/steps that had to be remode led

. . . and wh i ch v i o l ated countless building codes and other
reg ulations and standar ds.”

At the summary judgme nt hear ing, the parties ag ree d that the trial court would consider the summary judgme nt motions on submissi on. Following the hear ing, the court rende red final summary judgme nt, g ranting the Homeowne rs’ summary judgme nt motion, order ing Dee s to take nothing, and expressly stating that it considere d the Homeowne rs’ “objec tions to said response ” and “it is the opinion of the Court that [the H omeowner s’] objections are sustaine d.” De es filed a

The motion fo r summary judgme nt index indicates Dee s intended to also attach the 1 deposition transcr ipt of S t ac y Thomas, but the appellate rec ord has a duplicate copy of Sy lvia Thomas’s deposition transc ript in that ex hibit location. The third amende d petition was the live pleading at the time of the summ ar y judgme nt 2 hear ing. The rec ord does not include a fourth ame nded petition, but Dee s filed a fifth amende d petition the day afte r the summary judgme nt hear ing. Howeve r, a party must seek leave befor e filing an amende d pleading within seven day s of trial, Tex. R. Civ. P. 63, and summary judgme nt proce eding s are considere d trials for purposes of rule 63, Goswami v. Metropolita n Sav. & Loan Ass’n , 751 S.W .2d 487, 490 (Tex. 1988). Although rule 166a(c ) permits pleading s to be filed afte r the time of the hear ing and befor e judgme nt “with permission of the court,” Tex. R. Civ. P. 166a(c ), the record does not indicate that permission was g rante d or that the trial c ourt consider ed the fifth amende d petition, see Hinojosa Auto Body & Paint, Inc. v. Finishmaster, Inc. , No. 03-08- 00361-CV, 2008 WL 5210871, at *4 (Tex. App.— Au s t i n Dec. 12, 2008, no pet.) (mem. op.) (conc luding previously filed petition was live pleading wher e rec ord did not in d i ca t e t h at trial court g rante d permission to file or consider ed ame nded plea ding f iled on day

of summary

judgme nt hear ing)

. 3motion for clar ification conce rning whether the Homeowne rs’ objections wer e g rante d and a motion

for new trial, which the trial court denied. Dees t i m el y appea led the final summary judgme nt to this Court.

II. DISCUSS ION

Dee s raises three issues on appea l. First, Dees asser ts she was an invitee, not a licensee , and ther efor e the Home owner s had a duty to w arn. Second, Dee s claims a g enuine issue of mater ial fac t exi sts to prevent summary judgme nt beca

use t here is no direc t evidence that Dee s

was awa re of any def

ec ts and the dang er was not open and obvious. Third, Dee s arg ues that the
Homeowne rs’ multipl e objections to her summary judgme nt aff idavits may not be g rante d toge ther without specifica tion, and she wa s entitled to a mend her aff

idavits in re sponse to form objec tions.

A. Standard of

Review We revie w a trial court’s ruling on a motion for summary judgme nt de novo. Nassar

v. Liberty Mut. Ins. Co. , 508 S.W .3d 254, 257 (Tex. 2017). The summary judgme nt movant has the burden of showing there is no g enuin e i s sue of materia l fac t and that the movant is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a( c) ; T a r r v. Timberwood Park Owners Ass’n , 556 S.W .3d 274, 278 (Tex. 2018). “A trial court properly g rants a defe ndant’s traditional mot ion for summary judgme nt ‘i f the defe ndant disproves at least one element of eac h of the plaintiff’s claims or establishes all elements of an aff irmative defe nse to eac h claim.’” Dallas Morning News,
In c. v. Tatum , 554 S.W .3d 614, 625 (Tex. 2018) (quoting American Tobacco Co. v. Grinn el l , 951 S.W .2d 420, 425 (Tex. 1997)), cert. denied , 139 S. Ct. 1216 (2019). When the summary judgme nt does not specify the ruling ’s grounds, we must aff irm if any of the theor ies prese nted to
4the trial court and prese rved for appellate revie w are meritorious. Provident Life & Acc ident Ins. Co.

v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). We review the summary

judgme nt rec ord in the light
most favor able to the nonmovant, indulging ever y rea sonabl e infere nce and resolving doubts in nonmovant’s fa vor. Id. at 215.

Although our summary judgme nt revie w is de novo, we revie w a tria l c o u r t’ s d ecision
to exclude evidenc e in a summary judgme nt proce eding for an abuse of discretion—i.e., whether the trial court acte d “without ref ere nce to any g uiding rules and principles.” Starwood Mgmt., LLC

v. Swaim , 530 S.W .3d 673, 67 8 (T ex . 2 0 17) (per curia m) (citing National Liab. & Fire Ins. Co.

v. Allen , 15 S.W .3d 525, 527–28 (Tex. 2000), and quoting Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985)).
B. Scope of

Review and E videntiary Issues
I n re v i ew i n g a summary judgme nt g rant, the scope of our revie w is limit ed to the
summary judgme nt rec ord upon which the trial court’s ruling was based. See Fred Loya Ins. Agenc y

v. Cohen , 446 S.W .3d 913, 918 (Tex. App.—El Paso 2014, pet. denied) ; Y oung v. Gumfory , 322 S.W .3d 7 3 1, 738 (Tex. App.—Dallas 2010, no pet.). I n deter mining what constitutes the
summary judgme nt rec ord, we beg in with Dee s’s third issue reg arding the Homeowne rs’ evidentiar y objections. As rele vant here , the Homeowne rs made the following t h ree objections to Dee s’s
summary judgme nt affida

vits:

Def endants objects to the aff

idavit of Mr. Sealy as it is incomplete, assumes fac ts not in evidenc e, conclusions and mere specula tion and lists a building code that was not in exis tence at the time the subject steps wer e orig inally constructe d or at the time of the remode l of the steps. Sealy also make unsubstantiated conclusory statements of

5fac ts and unsubstantiated conclusory statements of the law - both of which are

inacc urate and not re adil y controve rtible. Ag ain, his aff idavit fails beca

use it lack persona l knowledg e, n o t rea dily controve rtible, contain fabr icated testimony , self-se rving , contain unsubstantiated l egal conclusions about status on premises, unsubstantiated fac tual conclusions. Also, there are is no substantiatio n of his all eg ed coef

ficient of friction testing and mere ly contains his say so which of no probative va lue. For

which, all should be stricke n. Def en dants object to the aff

idavit of Stacy Thomas as it is not fre e from bias or prejudice as Stacy Thomas was the g irlfriend of the plaintiff at the time the aff idavit was made and it i s not acc urate but mere ly cre ated by plaintiff’s attorney s to use ag ainst the Def

endants. The aff

idavit is specula tive and conclusory as to fac tual opinions and conclusory statements of the law wh i ch ar e likewise inacc urate

. For which, def

endants see ks to strike the aff idavit in total. Def endant objects to the excerpts from I nterna tional Build ing Code Commentary , plaintiff’s Ex hibit E beca use it is not proper ly authentica ted, and it inadmissible hear say and the codes provisions did not exis t at the time of the orig inal construction of the steps nor at the time of the remode l that may have included the steps in issue. As such this exhi bit should be stricken in total.
(Err ors in orig inal.) I n t h e fi nal summary judgme nt, the court stated that it had considere d the
Homeowne rs’ obj ec t i o n s to Dee s’s response and “[ i] t is the opi nion of t he C ourt that defe ndants’ objections are sustained.”

Dee s asser

ts: (1) “the trial court should be require d to clar ify which objections wer e
g rante d and which objections wer e not g rante d,” (2) the objections “should have been g rante d with

s p ec i fi city ,” and (3) beca use “the trial court g rante d a substantial number of [t he Homeowne rs’] objections, without specify ing which of the objections had bee n g rante d and which had not been
g rante d the Cou rt co u l d b e fo und to have made an implicit holding on those objections.” Dee s, howeve r, has not cited any authority requiring more specific ity in sustaining objections, nor have we found any . Fur

ther, the trial court expressly sustained “def endants’ objections” without limit ation; it did not g rant “a substantial number” of the objections, which implies some wer e not sustained, as 6Dee s arg ues. Finally , Dee s’s arg ument is unclea r as to how “an implicit holding on those objections” constitutes r ever sible err or as opposed to a n express ruling on the objections. See Tex. R. App. P.
44.1 (desc ribing standard for reve rsible err or). Reg ardle ss, she is incorre ct as to the ty pe of ruling

on the objections; the ruling on the objections was expressly stated in the final judgme nt, it was not implied. See H

ogan v. J. H

iggins T rucking, Inc

. , 197 S.W .3d 879, 883 (Tex. App.—Dallas 2006,

no pet.) (noting implied ruling occur s “if it is unexpressed, but capa ble of b eing understood from something e lse”). We c onclude that these asser tions have no merit.
Dee s arg ues that the trial court should ha ve g iven her

the opportunity

to amend her
summary judgme nt aff

idavits in response to form objections. See Tex. R. Civ. P. 166a(f ). Howeve r, “[w]hen a summary judgme nt movant objects to summary judgme nt evidenc e proff ere d by the

nonmo v an t , t h e b urden lies upon the nonmovant to reque st relief under rule 166a(f ), including a continuance or t he opportunit y to cure any fo rm al defects in the nonm ovant’s sum mary judgme nt evidenc e.” Coleman v. W oolf , 129 S.W .3d 744, 750 (Tex. App.—For t Worth 2004, no pet.).
“Ge nera lly , a motion for continuance is the proper proce dure to obtain this ‘opportunity .’” Tri-Steel Structures, Inc. v. Baptist Found. of Tex. , 166 S.W .3d 443, 448 (Tex. App.—For t Worth 2005, pet. denied) (citing W

ebster v. Allstate Ins. Co. , 833 S.W .2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Her e, afte r the Homeowne rs filed their objections, Dee s had the opportunity to seek leave to amend or supplement her affida vits or, i f necessar y , to seek a

continuance of the he aring

. See Tex. R. Civ. P. 166 a( f) ; E ckm ann v. Des Rosiers , 940 S.W .2d 394, 400 (Tex. App.—Austin 1997, no writ). Dee s failed to take either action b ef o re t h e trial court’s judgme nt, instead only moving for clar ification afte r the final judgme nt and more than three months afte r the Homeowne rs’

7objections, there by waiving this issue for appea l. See Tex. R. App. P. 33.1 (re quiring complaint to

be made to trial court by timely reque st to p re s er v e complaint for appellate revie w); DeLarosa v. Stokes , No. 03-12-00125-CV, 2012 WL 3600874, at *6 (Tex. App.—Austin Aug

. 17, 2012, no pet.) (mem. op.) (noting that nonmovant had opportunity to amend when movant f il e d f o r m o b jection
t o af fi d av i t ); Coleman , 129 S.W .3d at 750 (holding issue reg arding opportunity to amend waived when nonmovant failed to make reque st o r m o v e fo r continuance befor e judgme nt, or even seek leave during time trial court took motion for summary judgme nt under advisement ) ; s e e a ls o H e rrera

v. R.R. & F., Inc. , No. 03-01-00501- CV, 2002 WL 220490, at *3 (Tex. App.—Austin Fe b. 14, 2002,

no pet.) (not desig nated for publication) (collec ting case s and noting that “[n] othing in the rec ord shows that, prior to the distri ct co u rt ’s judgme nt, Her rer a . . . soug ht an opportunity to amend, or
reque sted a c ontinuance,” “[t] here fore , Her rar a wa ived this issue for appe al”)

. Dee s did not file a written response to Homeowne rs’ o bjections befor e the trial
court’s ruling o n t h e objections, instead raising the above two proce dural arg uments only in her motion for clar ification following the summary judgme nt. Now, for the first time in briefing befor e this Court, De es ap pear s to take issue with the merits, not just the proce dure, of the trial court’s ruling s u s t aining the objections as to the I nterna tional Building Code Commentary and the Sealy aff idavit. First, Dee s asser

ts that the I nterna tional Building Code Commentary “has been used in

m any court case s as evidenc e” and “it is likely that [i t] would qualify as a lear ned t re at i s e an d there fore shoul d b e an exception to the hear say rule.” Second, Dee s arg ues that “ther e was an insufficient basis to g rant the objection to [S ealy ’s] aff idavit” beca

use the Sealy aff

idavit raises
g enuine issues of materia l f act and the Homeowne rs did not “ provide their own expert witness” to show that Sealy ’s af

fidavit was inac cura te.
8As a prer equisite to prese nting a c o mp la in t f or appellate revie w, the rec ord must show the complaint was made to the trial court by a timely reque st, objection or motion. Tex. R. App. P. 33.1(a)

. When a court excludes summary judgme nt evidenc e, a party may not arg ue “any and ever y

new issue” she can think of on appea l. Cantu v. Horany , 195 S.W .3d 867, 871 (Tex. App.—Dallas 2006, no pet.) (citing Cruikshank v. Consumer Direct Mo r t g
. , Inc. , 138 S.W .3d 497, 499 (Tex. App.—Houston [14t h Dist.] 2004, pet. de n i ed )) ; see Montenegro v. Ocwen Loan Servic ing, LLC , 419 S.W .3d 561, 568 (Tex. App.—Amar illo 2013, pet. denied)

. By failing to r aise her complaints

as to the merits of the court’s ruling s on the objections, Dee s failed to prese rve err or for appea l. See Tex. R. App. P . 33.1(a) ; Montene gro , 419 S.W .3d at 568; Cantu , 195 S.W .3d at 871.
Fur ther, “whe n an appellee urg es sever al objections to a particula r piece of evidenc e and, on appea l, the appellant complains of its exclusion on only one of those bases, the appellant has waived that issue for appea l beca use [she] has not challeng ed all possible g rounds for the trial court’s ruling that sustained the objection.” Cantu , 195 S.W .3d at 871; see also Be rryman’s S. Fork, Inc.

v. J. Baxter B r inkmann Int’l Corp. , 418 S.W .3d 172, 190 (Tex. App.—Dallas 2013, pet. denied) ; Gulley v. Davis , 321 S.W .3d 213, 218 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)

. Dee s’s
arg uments addre ss only some, not all, possible g rounds for the trial court’s ruling that sustained the objections—e.g ., she fails to addre ss the o b j ection that the Sealy aff idavit is conclusory or the objection to the I nterna tional Building Code Commentary excerpt as not pr operly authentica ted. She thus has waived any err or as t o t h e ex cl u s i o n of the aff idavits on the unchalleng ed g rounds. See Berrym an’s , 418 S.W .3d at 190; Gulley , 321 S.W .3d at 218, Cantu , 195 S.W .3d at 871.

We conclude that the trial court did not abuse its discretion in excluding the Stacy af fi d av i t, the Sealy aff

idavit, and the I nterna tional Building Code Commentary excerpt from t h e 9summary judgme nt rec ord. We there fore overr ule Dee s’s third issue. Wit h this scope of revie w in mind, we now turn to De es’s fir st two issues.
C. Open and Obviou s

As an initial matter, we need not decide whether Dee s is a licensee or invitee to rea ch

our final dispositi on. See Tex. R. App. P. 47.1, .4. The Homeowne rs challeng ed only one element of Dees’s case in their sum mary judgme nt motio n

— i

. e. , whether the allege d dang erous condition
was ope n and obvious or other wise known to De es. This element ge nera lly applies whether De es is a licensee or an i n vitee. Compare Sampson v. University of Tex. , 500 S.W .3d 380, 391 (Tex. 2016) (noting that “license e must prove the following elements

. . . ‘(3) the licensee did not actua lly
k n o w o f th e c o n d it io n ’ ” ( q

u o ti n g S ta te D e p ’ t o f H ig h wa y s & P u b

. Tr

a n s p
. v
. P a y n e , 8 3 8 S. W. 2 d 2 3 5 , 237 (Tex. 1 9 9 2 )) ; C o unty of Cameron v. Brown , 80 S.W .3d 549, 558 (Tex. 2002) (“The rele vant inquiry is whether the [premises defe ct] was open and obvious to [t he licensee s], beca use that is the point at which they could choose to avoid the condition or otherwise protect t h em s el v es.”), with
Austin v. Kroger Tex., L.P. , 465 S.W .3d 193, 203 (Tex. 2015) (noting that “the Court has ty pically char acte rized the landowner ’s duty as a duty to make safe or war n of unrea sonably dang erous conditions that are not ope n and obvious or other wise known to the invitee” ). 3
I n their m o t i o n for summary judgme nt, the Homeowne rs asser ted that “[t] he differ ence in stair heig ht which plaintiff [Dees] claims is the rea son of her fall is open and obvious

I n Austin v. Kroger Texas, L.P. , the Texas Supreme Court descr ibed two exceptions to this 3 g ener al rule. 465 S.W .3d 193, 204–08 (Tex. 2015). Howeve r, Dee s did not asser t any exception to the trial court, and in her reply brief befor e this Court, she states that she “has no need to r ely upon either e x emption to the open and obvious test.” 10condition that has not chang ed in the sever al y ear s prior to her subject fall.” I n her deposition, Dee s

had desc ribed he r fa ll as follows:

I went to walk int o the kitchen a nd that’s wher e the stairs w ere . And I put my foot down and I went to tak e a s tep down towards the second step, and I felt like something missed. I felt like there should have been perha p s another step there

. Any way , I stepped and lost my balanc e and he ard my

bone cr ack. A nd then I

went to take my left foot down t o the ot h er step and los t my footing on that one as well, and I collapsed to the g round.

. . . I fee l like there should be an additional stair. I fee l like the unevenne ss is dang erous. I fee l like the g ap betwee n the first and the second step here is just a hazard, and the unevenne ss is -- poses a da ng er to pe ople who step on it.

I n her second amende d petition, Dee s also had descr ibed the ca use of the f

all as resulting from “a 4 larg e and/or

non-standar d g aps in betwe en the stairs/steps.”
We have long noted that g ener ally “whe re a condition is open and obvious and wher e the injured party has been over it many times, then as a matter of law the injured party would not be hear d to say that he did not know and rea liz e the dang er.” Shurett v. Osborne , 408 S.W .2d 740, 742 (Tex. Ap p . — Au s tin 1966, no writ) (citing Houston Nat’l Bank v. Adair , 207 S.W .2d 374 (Tex. 1948), abrogated by Parker v. Hi g h l a n d Park, Inc. , 565 S.W .2d 512 (Tex. 1978)). As summary 5

The second amende d petition was the live petition at the time the Homeowne rs filed their 4 motion for summary

judgme nt and was a ttached a s an exhibit to the motion. Parker v. Highland Park, Inc. abrog ated Houston National Bank v. Adair , 207 S.W .2d 374 5 (Tex. 1948), by “expressly abolish[i ng ] the so-ca lled no-duty conce pt” when a dang erous condition i s o p en an d obvious. Parker , 565 S.W .2d 512 (Tex. 1978). Howeve r, the Texas Supreme Cour t rec ently noted, “Althoug h the Parker Court c oncluded that these ‘ar e matters which bear upon the rea sonablene ss of an actor ’s condu ct i n confr onting a risk

. . . under principles of contributory neg lige nce,’ the Court’ s subsequent decisions have repe atedly rec og nized that, despite Parker , a 11judgme nt evidenc e supporting their claim that the co ndition was open and obvious or otherwise

known t o Dee s, the Homeowners relied on Dee s’s deposition testimony stating: (1) she had been
to the Homeowners’ residenc e probably around 10 times befor e the incident; (2) she had used the stairs during those visits and never f allen; (3) in just the y ear befor e the incide nt, she had used the stairs “[m] ay

be once or twice” ; (4) she had looked at the stairs befor e the incident; (5) the steps have looked the same “for as long as [Dees has] known”; (6) at the time of the incident and while coming down the stairs, she was looking “[a]t the stairs, at the railing , the kitchen are a” and she was looking d o wnwar d; and (7) she was using the railing while walking down the stairs. Moreove r, here t h e Homeowne rs submitt ed as summary judgme nt evidenc e a photo of the stairs that clea rly depicts the differ ence in stair heig ht betwee n the two steps and is perc eptible and obvious to any one who looked
at it, which Dee s does not dispute. The Homeowne rs also relied on Osadchy v. Southern Methodist 6
Un i v. , 232 S.W .3d 844 (Tex. App.—Dallas 2007, pet. denied)

. Simi lar to here , the plaintiff i n Osadchy complained about the heig ht of cer tai n stairs, asser

ting that “Osa dchy ’s pathway was approximately 9 3/4", or 3 1/4" out of allowable heig ht. This amounts to the riser being fifty perc ent (50%) in e x cess of the allowed maxi mum f or the risers of this stairw ay .” Id. at 847. Even though

landowner g ener ally has no duty to protec t or war n an invitee ag ainst unrea sonable dang ers that are open and obvious or otherwise known to the invitee.” Austin , 465 S.W .3d at 207 (quoting Parker , 565 S

. W

. 2 d at 520) (citation omitted). Acc ording ly , the Court eff ectively limit ed Parker to establishing a “nec essar

y -use e x ception,” r ather

than abr og ating the g ener al rule: “ [W ]e think the better approa ch is to follow our more rec ent prec edent and rec og nize the Parker rule as an exception that applies when the fac ts demonstrate that (1) it was nece ssary that the invitee use the unrea sonably dang erous premis es and (2) the landowner should have anticipated that the invitee was unable to avoid the unre asonable risks despite the invitee’ s awa rene ss of them.” Id. I n her de position, S y lvia Thomas clea rly responde d “No” when shown the picture of the 6 steps and aske d “does the heig ht on [ step] 1 and 2 look the same to y ou? ” 12Osadc hy arg ued on appea l that “he did not have actua l knowledg e of the condition of the stairway ,” the court conclude d that the fac t that Osadc hy “admitted he had ent er ed the building on sever al

occa sions prior to his fall using the same stairs wher e the acc ident occur red” “indicate [d] he was

awa re of the condition of the stairway .” Id. at 853. The court there fore aff irmed the summary judgme nt ag ainst Osadchy

. Id.

Following Osadchy , we conclude th at the “g aps” here are open and obvious conditions. See id. ; see also Cross v. Litt lefield , No. 11-14-00224- CV, 2016 WL 6998981, at *3–4 (Tex

. Ap p . — E as t land Nov. 30, 2016, no pet.) (mem. op.) (conc luding that fac t that “step was
uneven, had an improper slope, and had no war nings” was open and obvious). To the extent De es is also arg

uing that the lack of a handrai l o n o ne side is the defe ct, case law establishes that a missing hand rail is g ener ally an open and obvious condition

. See Gene ral Elec

. C o
. v. Mori tz , 7
2 5 7 S.W .3d 211, 215–16 (Tex. 2008) (holding that premises owner had no duty to war n d el i v er y driver “that the ramp he had been using for more than a y ea r had no handra ils”); Lopez v. Ensign U.S. S. Drilling, LLC , 524 S.W .3d 836, 848 (Tex. App.—Houston [14t h Dist.] 2017, no pet.)

Additionally , to the extent Dee s’s complaint rests on her third amende d petition’s asser tion 7 that she fell due to the stairs violating “countless building codes and other reg ulations and standards” without identify ing the defe cts that violate reg ulations, we note that case law est ab l i s h es that a violation of city

ordinanc es g oes to whether Homeowne rs ex erc ised “re asonable car e to reduce or eliminate the risk,” not to whether de fec ts a re open and obvious or otherwise known to the invitee or licensee

. See W

yck off v. George C. Fuller Contracting Co. , 357 S.W .3d 157 , 165 (Tex. App.—Dallas 2011, no pet.) (noting that “violation of building codes does not rela te to whether West or Fuller Contracting had a duty to Wy ckoff and, there fore , is not rele vant to our analy sis in this case ” beca

use violation of o rd i nance s is rele vant only to whether licensor failed to exercise rea sonable car e); McDa n i el v. Continental Apts. Joint Venture , 887 S.W .2d 167, 172 (Tex. App.—Dallas 1994, writ denied) (holding violation of city ordinanc e re lates only

to third element of premises defe ct cause of action

— i

. e. , alleg ed failure to exercise rea sonable car e to reduc e or eliminate risk). 13(af

firming summary judgme nt wher e evidenc e established that g ap in handra il o n s ta ir w a y f r e quently used by independe nt contra ctor “exi sted the entire time [ the independe nt contrac tor] was working and was not c oncea led”) ; Martin v

. Gehan Homes Ltd. , No. 03-06-00584- CV, 2008 WL 2309265,
at *2 (Tex. App.—Austin J une 4, 2008, no pet.) (mem. op.) (holding g ener al contra ctor had no duty
to w arn of lack of g uardr ails on second- story landing wher e, althoug h plaintiff did not know about lack of g uardr ails, any one could have see n it before walking upstairs).
Not only does the Homeowne rs’ summary judgme nt evidenc e support the conclusion that the alleg ed defe cts are open and obvious, but also Dee s’s evidenc e submitt ed with her response . For example, Dee s submitt ed the deposition transcr ipt from Speedy Thomas, which shows he testified that people g rab the handra il beca use they see the need for ca u t i o n due to steps that “ar e differ ent beca

use they are differ ent heig hts”: “Tha t’s why the handra il is there. E v er y body that
comes to my house t he f

i rs t t i m e t h ey s ee [t he st eps] they rea liz e, Okay , we need to be care ful on these. I don’t have to tell them. They see it.”
We there fore conclude that the Homeowne rs met their summary judgme nt burden as d ef en d an ts to “conc lusively neg ate[] at least one element of the plaintiff’s claim.” See Pai n t er

v. Amerime

x Drilling I, Ltd. , 561 S.W .3d 125, 130 (Tex. 2018). The Homeowne rs established as a

m at t er o f l aw that the alleg ed condition of the stairway was open and obvious and that the
Homeowne rs there fore did not owe a duty “to protec t or war n” Dee s “ag ainst unrea sonable dang ers that are open and obvious or otherwise known.” See A u s t i n , 4 6 5 S.W .3d at 207. Be cause the
Homeowne rs met their burden as movants to show that they are entitled to judgme nt as a matter of law and tha t no ge nuine issue of mate rial fa ct exist s, the burden shifted to Dee s as t he nonmovant

14to raise a g enuine issue of materia l fac t prec luding summary judgme nt. See Tex. R. Civ. P. 166a(c );

Lujan v. Navistar, Inc. , 555 S.W .3d 79, 84 (Tex. 2018).

On appea l, Dee s asser

ts that sh e ra i sed a g enuine issue of materia l fac t reg arding whether the alleg ed condition was open and obvious by submitt ing with her summary j u d g ment
response (1) the Sealy aff idavit establishing building code violations and defe cts that “ar e not visually appar ent,” including “inv i s ible (unsee n) nosings (lea ding edg es of trea ds)” and “uneve n

c o n s truction of the top landing ”; (2) the I nterna tional Building Code Commentary excerpt d is c u s s in g
a st udy that uneven construction “crea tes a high risk of i njury even if the vi ctim had traverse d the stairca se hundreds of times prior to the fall or incident”; and (3) co n t ra d i ctory testimony from
Homeowne rs raising a fac t issue. But this evidenc e fails to raise a g enuine issue of materia l fac t for the following rea sons.

First, as we have alre ady noted, the Sealy aff idavit and t h e I nterna tional Building Code Commentary excerpt are not a part of the summary judgme nt rec ord and thus cannot serve as evidenc e raising a g enuine issue of materia l fact

. Second, the alleg ed contra dictory testimony identified by

Dee s fails to raise a g enuine issue of m ater ial fac t. Dees points to the Homeowne rs’ alleg edly conflicting testimony as to whether lights wer e on at the time of the incident. But whether the lights wer e on or off at the time of the incident does not impact the “open and obvious” nature of the stairs g iven Dee s’s previous uses of the stairs at other times. See, e.g. , Cross , 2016 WL 6998981,
at *3–4 (conc luding that even when nighttime visibil ity conditions at time of incident do not permit clea rly perc eiving condition, fac t that person we nt dow n step previous times in day light is enoug h
to have actua l knowled ge of step’s condition). Dee s also points to contra dictory testimony from

15Homeowne rs that, acc ording to her, “ca lls into question the cre dibilit y of the Appellee s.” But even

if the Homeowne rs’ testimonial statements wer e contra dictory , which we do not decide , they are not rele vant to whether the alleg ed condition of the stairs is “open and obvious.” And the Homeowne rs’

cre dibilit y is not at issue as they did not rely on their own testimony to meet their summary judgme nt burden. The only testimony identified and provided by Dee s that remotely conce rned the “open and obvious” nature of th e s t airway was from the Homeowne r Sy lvia Thomas conce rning some confusion as to when she noticed that the steps wer e of differ ent heig hts and her statements of “[j] ust now” and “I don’t know” when she was asked when she noticed. But whe n Sy lvia was shown the picture of the steps and asked “does the heig ht on [st ep] 1 and 2 look the same to y ou,” she clea rly and unambig uously responde d, “No.” W e t h erefore conclude that Dee s failed to raise a g enuine issue of mater ial fac t as to whether the allege d condition was open and obvious. See Tex. R. C iv. P. 166a(c) ; Lujan , 555 S.W .3d at 84.

I n sum, we hold that the Homeowne rs m et their burden to establish that they wer e entitled to summary judgme nt as a matter of law and Dee s did not raise a g enuine issue of materia l fac t in response. See Tex. R. C iv. P. 166a(c); Osadchy 232 S.W .3d at 853. Acc ording ly , the t rial
court did not err in g ranting summary judgme nt to the Hom eo wn er s , and we overr ule Dee s’s second issue.

III. CONCLUSION

H a v in g o v e r r u le d D e e s ’ s is s u e s , w e a f

f ir m th e d is tr ic t c o u

r t’ s f in a l s u mm a r y ju d g me n t.

16__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Goodwin, B aker , and Smith
Affir med Filed: Jul y

3, 2019

17