Linda Lough v. James Pack and Betty Pack ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00336-CV
Linda Lough § From the 48th District Court
§ of Tarrant County (048-254814-11)
v.
§ March 21, 2013
James Pack and Betty Pack § Opinion by Justice Gabriel
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
It is further ordered that appellant Linda Lough shall pay all costs of this
appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00336-CV
LINDA LOUGH APPELLANT
V.
JAMES PACK AND BETTY PACK APPELLEES
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Linda Lough appeals the trial court’s order granting summary
judgment for appellees James Pack and Betty Pack. We affirm.
Background Facts
Linda Lough and James and Betty Pack were friends. On February 9,
2011, James Pack picked Lough up from her house and took her to the Packs’
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See Tex. R. App. P. 47.4.
house for a visit. There had been an ice storm the day before, and there was ice
on the ground. When Lough left the Packs’ house, she left through a side door
onto the porch. She slipped on ice that had accumulated from the storm and
broke her ankle.
Lough sued the Packs for gross negligence. The Packs filed a traditional
motion for summary judgment, arguing that under Scott & White Memorial
Hospital v. Fair, 310 S.W.3d 411 (Tex. 2010), naturally accumulating ice is not,
as a matter of law, an unreasonably dangerous condition; therefore, it cannot be
the basis of a premises liability suit. Lough also filed a motion for summary
judgment on her claim. The trial court granted the Packs’ motion, denied
Lough’s, and dismissed Lough’s claims. This appeal followed.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
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summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented. Mann
Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,
300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d
at 848.
Premises Liability
Premises liability is a form of negligence in which the duty owed to a
plaintiff depends on the plaintiff’s status. Scott & White, 310 S.W.3d at 412. A
plaintiff can be an invitee, a licensee, or a trespasser. Wyckoff v. George C.
Fuller Contracting Co., 357 S.W.3d 157, 164 (Tex. App.—Dallas 2011, no pet.).
The Packs argue that Lough was a licensee; Lough argues that she was an
invitee. Under both standards, Lough is required to show that she was injured by
“a condition on the land that creates an unreasonable risk of harm.” See Scott &
White, 310 S.W.3d at 412; State Dep’t of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 237 (Tex. 1992). Because we can resolve Lough’s issues on this
ground, we need not determine whether she was an invitee or a licensee.
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Discussion
In Lough’s first three issues, she argues that the trial court erred by
granting summary judgment for the Packs based on the ruling in Scott & White
that naturally occurring ice is not an unreasonably dangerous condition. In her
fifth issue, Lough argues that the trial court erred by not granting her motion for
summary judgment.
In Scott & White, the plaintiff slipped and fell on ice from a winter storm on
the road that separated the hospital and the parking lot. 310 S.W.3d at 412. The
court held that naturally occurring ice does not present an unreasonable risk of
harm unless there is “assistance or involvement of unnatural contact.” Id. at 414.
Ice that “accumulate[d] as a result of an act of nature” is beyond the premises
owner’s control. Id. at 415 (quoting Coletta v. Univ. of Akron, 49 Ohio App. 3d
35, 36 (1988)). Ice that accumulated by “causes and factors other than the
inclement weather conditions” is an unnatural accumulation that may form the
basis of a premises liability claim. Id. (quoting Porter v. Miller, 468 N.E.2d 134,
136 (Ohio Ct. App. 1983)). For example, frozen liquid that leaked from a vending
machine made unnatural ice that could support a premises liability action. See
Furr’s, Inc. v. Logan, 893 S.W.2d 187, 189, 191–92 (Tex. App.—El Paso 1995,
no writ.). In Scott & White, the defendant established that the ice was in its
natural state and the plaintiff was barred from recovery. 310 S.W.3d at 415.
In the present case, James Pack testified that the ice that Lough slipped
on was caused by “[t]he weather” and that he did not have leaky pipes or had not
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thrown water outside to freeze. Lough does not dispute James Pack’s testimony
and points to nothing in the record showing that the ice came from an unnatural
source. The ice, therefore, was a natural accumulation, and it cannot support
Lough’s cause of action.
Lough’s attempts to distinguish Scott & White are unpersuasive. There is
nothing in the analysis in Scott & White that limits its application to commercial
property, and we see no reason to conclude that natural ice transforms into an
unreasonably dangerous condition simply because it accumulated on private
property instead of a commercial parking lot. Neither does the Packs’ actual
knowledge of the ice, a separate element of her claim, somehow alleviate
Lough’s burden to prove that she was harmed by an unreasonably dangerous
condition. See id. at 415–16 (rejecting the plaintiff’s contention that a premises
owner should be liable when he has notice that a natural accumulation of ice has
“created a condition substantially more dangerous than a business invitee should
have anticipated”). Because an essential element of Lough’s claim has been
negated, she is precluded from recovery. We overrule her first, second, third,
and fifth issues.
In her fourth issue, Lough complains that she is entitled to pursue her
claim because she is a third-party beneficiary of the Packs’ homeowner’s policy.
She also raises the constitutionality of the lower court’s holdings. There are no
pleadings to support Lough’s contention that she is a third-party beneficiary, and
she did not raise these issues in the trial court. Lough has thus waived these
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arguments. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). We
overrule Lough’s fourth issue.
Conclusion
Having overruled Lough’s five issues on appeal, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DELIVERED: March 21, 2013
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