AFFIRMED and Opinion Filed April 22, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01610-CV
SHENITRA WILLIAMS, INDIVIDUALLY,
AND AS NEXT FRIEND OF R.W., III, A MINOR, Appellant
V.
ADVENTURE HOLDINGS, L.L.C., D/B/A AMAZING JAKES, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-03596-2011
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Fillmore
Opinion by Justice Lang
Shenitra Williams, individually, and as next friend of R.W., III, a minor, appeals the trial
court’s order granting Adventure Holdings, L.L.C., d/b/a Amazing Jakes’s motion for summary
judgment on Williams’s premises liability claim. Williams raises two issues arguing the trial
court erred when it granted Amazing Jakes’s motion for summary judgment because: (1)
Amazing Jakes used its motion for summary judgment to circumvent filing special exceptions as
it was based on a pleading deficiency that could have been cured by amendment; and (2) she
raised an issue of material fact as to each element of her claims, precluding both traditional and
no-evidence summary judgment.
We conclude the trial court did not err when it granted Amazing Jakes’s motion for
summary judgment because the motion for summary judgment was not attempting to circumvent
the filing of special exceptions and Williams did not raise an issue of material fact precluding no-
evidence summary judgment. The trial court’s order granting summary judgment on Williams’s
claims is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Amazing Jakes is an indoor amusement facility where the public may purchase food,
beverages, and play various amusements on its premises. The facility consists of two levels and
has two escalators, permitting access between those levels.
To celebrate R.W.’s third birthday, Williams took her son and other family members to
Amazing Jakes. Williams allowed her son to play upstairs under the supervision of Williams’s
nine-year-old sister, while Williams remained downstairs in the dining area. R.W. was riding the
descending escalator, without adult supervision, when he tripped, seriously and permanently
injuring his hand and fingers.
Williams filed a lawsuit against Amazing Jakes alleging a claim for premises liability and
seeking damages for the injuries to R.W.’s hand and fingers. Amazing Jakes filed an answer,
generally denying the allegations and asserting the affirmative defense of proportionate
responsibility. Williams filed her first amended petition alleging additional negligent conduct by
Amazing Jakes and its employees.
Amazing Jakes filed a motion for traditional and no-evidence summary judgment on
Williams’s premises liability claim. Williams responded arguing discovery was not complete,
and the deposition testimony of three Amazing Jakes employees and her expert raised issues of
material fact. In her response to the motion for summary judgment, Williams argued she raised
issues of material fact as to the elements of both negligent activity and premises liability claims.
In its reply, Amazing Jakes argued that Williams was limited to a premises liability claim and
her allegations did not support a negligent activity claim. Williams filed her second amended
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petition adding an alternative claim for negligent activity and an additional response to the
motion for summary judgment. The trial court granted Amazing Jakes’s motion for summary
judgment, dismissing Williams’s claims. Williams filed a motion for new trial which was
overruled by operation of law. TEX. R. APP. P. 21.8(c).
II. MOTION TO DISMISS
In its brief responding to this appeal, Amazing Jakes includes a motion to dismiss the
appeal because Williams failed to properly cite to authority and the clerk’s record as required by
Texas Rule of Appellate Procedure 38.1(i). Afterward, Williams filed a motion for leave to
amend her brief, which this Court granted. Then, she filed her amended brief, which contains
citations to authorities and the record on appeal. This Court denies Amazing Jakes’s motion to
dismiss the appeal.
III. MOTION FOR SUMMARY JUDGMENT AS MEANS
OF CIRCUMVENTING SPECIAL EXCEPTIONS?
In issue one, Williams argues the trial court erred when it granted Amazing Jakes’s
motion for summary judgment because Amazing Jakes used its motion to circumvent filing
special exceptions. She claims a motion for summary judgment should not be based on a
pleading deficiency that can be cured by an amendment. Amazing Jakes responds that at the
time the motion for summary judgment was filed, Williams’s first amended petition alleged only
a premises liability claim.
A. Applicable Law
Special exceptions may be used to challenge the sufficiency of a pleading. Friesenhahn
v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); TEX. R. CIV. P. 91. When the trial court sustains
special exceptions, it must give the pleader an opportunity to amend the pleading. Friesenhahn,
960 S.W.2d at 658. If a party refuses to amend or the amended pleading fails to state a cause of
action, then summary judgment may be granted. Friesenhahn, 960 S.W.2d at 658. However, a
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trial court may not grant summary judgment for failure to state a cause of action without first
giving the plaintiff an opportunity to amend the pleadings. Perry v. S.N., 973 S.W.2d 301, 303
(Tex. 1998); Pietila v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex. 1993). Nevertheless, summary
judgment may be proper if a pleading deficiency is of the type that could not be cured by an
amendment. Friesenhahn, 960 S.W.2d at 658.
B. Application of the Law to the Facts
Amazing Jakes moved for traditional and no evidence summary judgment on Williams’s
premises liability claim. Amazing Jakes argued that it was entitled to traditional summary
judgment, as a matter of law, because the evidence demonstrated the escalator was working
properly on the day of the incident, disproving the essential element that the condition on the
premises posed an unreasonable risk of harm. See TEX. R. CIV. P. 166(c). Also, Amazing Jakes
argued it was entitled to no evidence summary judgment because Williams had no evidence that
the escalator posed an unreasonable risk of harm and that Amazing Jakes had actual or
constructive knowledge that the escalator was a dangerous condition. See TEX. R. CIV. P. 166(i).
Amazing Jakes did not seek summary judgment on the basis that Williams failed to state a cause
of action or any other pleading deficiency. Accordingly, we conclude the trial court did not err
when it granted Amazing Jakes’s motion for summary judgment because that motion was not
attempting to circumvent the filing of special exceptions.
Issue one is decided against Williams.
IV. MATERIAL FACT ISSUE PRECLUDING SUMMARY JUDGMENT?
In issue two, Williams argues the trial court erred when it granted Amazing Jakes’s
motion for summary judgment because she raised an issue of material fact as to each element of
her claims for premises liability and negligent activity. She contends that her summary judgment
evidence raised issues of material fact as to Amazing Jakes’s prior knowledge that its escalators
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were a danger to small children riding alone and failure to warn its customers of the danger or
take measures to eliminate the danger. Amazing Jakes responds that with regard to Williams’s
claim for premises liability, she failed to raise an issue of material fact because she does not
identify a condition of the premises that posed an unreasonable risk of harm or show that
Amazing Jakes knew or should have known of the alleged dangerous condition on the premises.
Instead, Amazing Jakes contends that Williams is taking the position that all escalators are a
dangerous condition. Further, Amazing Jakes argues its summary judgment evidence shows that
the escalator was functioning properly and equipped with a cutoff switch that “shut down the
system if any object became caught in the escalator.” Also, Amazing Jakes claims that its
summary judgment evidence established there were no prior injuries on the escalator. With
regard to Williams’s claim for negligent activity, Amazing Jakes responds that her attempt to
phrase pleadings to allege another theory of negligence does not affect the application of
premises liability law and R.W.’s injury was not caused by any ongoing activity.
A. Standard of Review
When the trial court’s order granting summary judgment does not specify the grounds
relied on, an appellate court must affirm the summary judgment if any of the summary judgment
grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872B73
(Tex. 2000); Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet.
denied). Generally, when a party moves for both traditional and no-evidence summary judgment
on a claim, an appellate court will first review the trial court=s judgment under a no-evidence
standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);
Cunningham, 365 S.W.3d at 190.
The same legal sufficiency standard of review that is applied when reviewing a directed
verdict is also applied when reviewing a no-evidence summary judgment. See Tex. Integrated
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Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—
Dallas 2009, pet. denied) (op. on motion for reh=g); RTLC AG Prods., Inc. v. Treatment Equip.
Co., 195 S.W.3d 824, 829 (Tex. App.—Dallas 2006, no pet.). When reviewing a no-evidence
summary judgment, an appellate court must determine whether the nonmovant produced any
evidence of probative force to raise a fact issue on the material questions presented. Tex.
Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d at 833. An appellate court reviews a no-
evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to
differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per
curiam); Wal-Mart, Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). An appellate court views all of the evidence
in the light most favorable to the party against whom the no-evidence summary judgment was
rendered and disregards all contrary evidence and inferences. See Smith v. O=Donnell, 288
S.W.3d 417, 424 (Tex. 2009); Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more
than a scintilla of probative evidence to raise a genuine issue of material fact. See Smith, 288
S.W.3d at 424. More than a scintilla of evidence exists when the evidence Arises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.@ See Merrell
Dow, 953 S.W.2d at 711.
B. Applicable Law
Premises liability is a special form of negligence. W. Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005). A premises defect cause of action exists if a person is injured as a result
of a condition of the premises. The elements of a premises liability case are: (1) actual or
constructive knowledge of some condition on the premises by the owner or operator; (2) the
condition posed an unreasonable risk of harm; (3) the owner or operator did not exercise
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reasonable care to eliminate or reduce the risk; and (4) the owner or operator’s failure to use such
care proximately caused the plaintiff’s injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264
(Tex. 1992).
A condition presents an unreasonable risk of harm for premises-defect purposes when
there is a sufficient probability of a harmful event occurring that a reasonably prudent person
would have foreseen it or some similar event as likely to happen. County of Cameron v. Brown,
80 S.W.3d 549, 556 (Tex. 2002). There is no definitive test for determining whether a specific
condition presents an unreasonable risk of harm. Pitts v. Winkler County, 351 S.W.3d 564, 573
(Tex. App.—El Paso 2011, no pet); Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694, 701 (Tex.
App.—Houston [1st Dist.] 2011, no pet.). However, when determining whether an escalator was
a condition of the premises that posed an unreasonable risk of harm, courts have looked for
evidence of the following: (1) that someone was previously injured by the escalator; (2) whether
the construction of the escalator was somehow defective or unusual; (3) the escalator was
somehow inherently dangerous or hazardously situated; and (4) whether the escalator was in
compliance with applicable standards or that the particular construction or placement of the
escalator would have suggested to the premises owner that the escalator presented the prohibited
degree of danger, even if it had attempted an inspection for dangerous conditions. See
Dominguez v. Walgreen Co., No. 11-08-00045-CV, 2009 WL 3155041 (Tex. App.—Eastland
Oct. 1, 2009, no pet.) (mem. op.) 1 (summary judgment on premises liability claim appropriate
where child wandered away from mother, fell down and injured hand on escalator, but evidence
showed escalator working properly on day of accident and no evidence of escalator
malfunction); Schreiner v. Lakeline Developers, No. 03-02-00318-CV, 2003 WL 365967, *2
1
“All opinions and memorandum opinions in civil cases issued after [January 1, 2003] have precedential value.” Tex. R. App. P. 47.2 cmt., 47.7
cmt.; see also R.J. Suarez Enters., Inc. v. PNYX, L.P., 380 S.W.3d 238, 243 n.2 (Tex. App.—Dallas 2012, no pet.).
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(Tex. App.—Austin Feb. 21, 2003, no pet.) (mem. op.) (concluding summary judgment on
premises liability claim appropriate where child’s head, which was resting on moving escalator
handrail, was caught between handrail and stationary metal guardrail because no evidence of the
listed criteria); see also Pitts, 351 S.W.3d at 573 (courts consider whether premises owner has
received complaint of prior injuries or reports of potential danger); Farrar, 362 S.W.3d at 701
(evidence of similar injury or complaint caused by condition is probative on question of whether
condition posed unreasonable risk of harm). Whether a condition is unreasonably dangerous is
ordinarily a fact question. Pitts, 351 S.W.3d at 573; Farrar, 362 S.W.3d at 701. Nevertheless,
the mere fact that an accident occurred is no evidence that there was an unreasonable risk of such
an occurrence. Schreiner, 2003 WL 365967, at *2; Dabney v. Wexler-McCoy, Inc., 953 S.W.2d
533, 537 (Tex. App.—Texarkana 1997, pet. denied).
When the injury is the result of the premises condition, the injured party can only recover
under a premises defect theory. McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167,
171 (Tex. App.—Dallas 1994, writ denied) (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d
258, 259 (Tex. 1992)). Adroit phrasing of the pleadings to encompass design defects, per se
negligence, or any other theory of negligence does not affect the application of premises liability
law. McDaniel, 887 S.W.2d at 171.
C. Application of the Law to the Facts
Amazing Jakes argued it was entitled to no-evidence summary judgment because
Williams had no evidence that the escalator posed an unreasonable risk of harm and that
Amazing Jakes had actual or constructive knowledge that the escalator was a dangerous
condition. See TEX. R. CIV. P. 166(i). On appeal, Williams points to the following summary
judgment evidence, which she contends raised an issue of material fact, precluding summary
judgment on her premises liability claim: (1) the depositions of three employees of Amazing
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Jakes, stating they knew it was dangerous for small children to ride an escalator unescorted by an
adult; and (2) an expert report stating, “it was unsafe to allow small children to freely roam and
access both floors of the amusement facility” and “[Amazing Jakes] knew, or should have
known, the dangers associated with operating an escalator, in a children’s play environment, and
taken proactive safety measures to provide a safe experience for its guests.”
Williams does not direct us to any evidence that shows anyone was previously injured by
the escalator. There was no evidence that the construction of the escalator was somehow
defective or unusual. Williams did not present evidence that the escalator was somehow
inherently dangerous or hazardously situated. There is no evidence that the construction of the
escalator was not in compliance with applicable standards, or that the particular construction and
placement of the escalator served as a suggestion or warning to Amazing Jakes that it presented
the prohibited degree of danger, even if Amazing Jakes attempted inspections for dangerous
conditions. See Schreiner, 2003 WL 365967, at *2.
The evidence that Williams was not supervising R.W. and he was injured while riding an
escalator is evidence only that he was injured while riding the escalator. See Schreiner, 2003
WL 365967, at *3. Further, the evidence that children should not be permitted to ride an
escalator while unsupervised by an adult is just that. Accordingly, we conclude the trial court
did not err when it granted Amazing Jakes’s motion for no-evidence summary judgment because
Williams failed to raise an issue of material fact demonstrating the escalator was a condition of
the premises that posed an unreasonable risk of harm.
Also, Williams argues she raised an issue of material fact precluding summary judgment
on her negligent activity claim. 2 After Amazing Jakes filed its motion for summary judgment,
2
Williams does not raise an issue or otherwise argue that the trial court erred when it granted summary judgment, dismissing all of her claims,
because Amazing Jakes did not move for summary judgment on her negligent activity claim.
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Williams amended her petition to include a claim for negligent activity. Her negligent activity
claim alleged, in part, “The layout and design of [Amazing Jakes’s] amusement facility
presented a continuing and ongoing danger/hazard to small children because of the activity of
allowing small children to ride the escalators in question alone and unsupervised.” Williams’s
adroit phrasing of her second amended petition to encompass a negligent activity theory does not
affect the application of premises liability law. See McDaniel, 887 S.W.2d at 171.
Issue two is decided against Williams.
V. CONCLUSION
Amazing Jakes’s motion to dismiss the appeal is denied.
The trial court did not err when it granted Amazing Jakes’s motion for summary
judgment because the motion for summary judgment was not attempting to circumvent the filing
of special exceptions and Williams did not raise an issue of material fact precluding no-evidence
summary judgment.
The trial court’s order granting Amazing Jakes’s motion for summary judgment is
affirmed.
/Douglas S. Lang
DOUGLAS S. LANG
121610F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHENITRA WILLIAMS, On Appeal from the 219th Judicial District
INDIVIDUALLY, AND AS NEXT Court, Collin County, Texas
FRIEND OF R.W., III, A MINOR, Trial Court Cause No. 219-03596-2011.
Appellant Opinion delivered by Justice Lang. Justices
FitzGerald and Fillmore participating.
No. 05-12-01610-CV V.
ADVENTURE HOLDINGS, L.L.C., D/B/A
AMAZING JAKES, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order granting
summary judgment is AFFIRMED.
It is ORDERED that appellee ADVENTURE HOLDINGS, L.L.C. D/B/A AMAZING
JAKES recover its costs of this appeal from appellant SHENITRA WILLIAMS,
INDIVIDUALLY, AND AS NEXT FRIEND OF R.W., III, A MINOR.
Judgment entered this 22nd day of April, 2014.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
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