ACCEPTED
03-15-00243-CV
6170382
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/22/2015 10:17:26 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00243-CV
IN THE COURT OF APPEALS
THIRD APPELLATE DISTRICT OF TEXAS FILED IN
3rd COURT OF APPEALS
AT AUSTIN AUSTIN, TEXAS
7/22/2015 10:17:26 AM
KRISTIN LEE, JEFFREY D. KYLE
Appellant Clerk
v.
K&N MANAGMENT, INC. dlb\a RUDY'S COUNTRY STORE and BAR-B-Q
Appellees
ON APPEAL FROM
1h
THE 98 JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
(Honorable Rhonda Hurley)
APPELLANT'S BRIEF
Law Offices of Price Ainsworth, P.C.
Price Ainsworth
State Bar No. 00950300
3821 Juniper Trace, #210
Austin, Texas 78738
512-233-1111
512-472-9157 fax
ATTORNEY FOR APPELLANT
KRISTIN LEE
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and address of all trial
and appellate counsel.
PlaintiffslAppellants: Counsel for the Freiheit:
Kristin Lee Price Ainsworth
Law Offices Ainsworth, P.C.
3 821 Juniper Trace, #21 0
Austin, Texas 78738
Defendants/Appellees: Counsel for K&N Management d\b\a Rudy's
Country Store and Bar-B-Q:
K&N Management d\b\a Rudy's
Country Store and Bar-B-Q Ethan Goodwin
Clark, Trevino & Associates
1701 Directors Boulevard, #920
A us tin, Texas 7 87 44
II
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL..................................................................... u
TABLE OF CONTENTS...................................................................................................... m
INDEX OF AUTHORITIES ································································································· IV
APPELLANTS' BRIEF......................................................................................................... 1
STATEMENT OF THE CASE............................................................................................. 2
ISSUES PRESENTED IN THIS BRIEF............................................................................... 2
STATEMENT OF THE FACTS........................................................................................... 2
SUMMARY OF THE ARGUMENT.................................................................................... 3
STANDARD OF REVIEW................................................................................................... 3
ARUGMEMENT AND AUTHORITIES.............................................................................. 4
A. Evidence presented to the Trial Com1 on both motions for summary
judgment raised genuine issues of material fact............................................ 4
B. Evidence Inferences Establish Constructive Knowledge ofDefects............. 6
PRAYER................................................................................................................................ 7
CERTIFICATE OF SERVICE.............................................................................................. 8
Ill
INDEX OF AUTHORITIES
CASES PAGE
Huckebee v. Time Warner Entm't Co. 19 S.W. 3d 413,422 (Tex. 2000)
19 S.W. 3d 413,422 (Tex. 2000) .............................................................................. 3
Park Place Hasp. v. Estate of Milo
909 S.W. 2d 508, 510 (Tex. 1995) ............................................................................ 3
Timpte Indus. v. Gish
286 S.W. 3d 306, 310 (Tex. 2009) ............................................................................ 3,4
Ford Motor Co. v. Ridge·way
82 S.W. 3d 26,29 (Tex. App. --San Antonio 2002), rev'd on other grounds, 135 4
S.W. 3d 598 (Tex. 2004) .......................................................................................... .
Wyatt v. Furr 's Supermarket, Inc.
908 S.W.2d 266,268 (Tex. App.- El Paso 1995, no writ) (emphasis added).............. 4
Wal-Mart Stores, Inc. v. Gonzalez
(968 S.W.2d 934- Tex. 1998) .................................................................................... 5
iv
No. 03-15-00243-CV
IN THE COURT OF APPEALS
THIRD APPELLATE DISTRICT OF TEXAS
AT AUSTIN
KRISTIN LEE,
Appellant
v.
K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BAR-
B-Q
Appellee
ON APPEAL FROM
1
THE 98 JUDICIAL DISTRICT COURT
h
TRAVIS COUNTY, TEXAS
(Honorable Rhonda Hurley)
APPELLANT'S BRIEF
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant Kristin Lee files this Brief of Appellant. The Clerk's Record will
be referenced to as "CR at [page#]."
STATEMENT OF THE CASE
Appellant Kristin Lee was a business invitee on the premises owned and
operated by Appellee K & N Management, Inc. doing business as Rudy's Country
Store and Bar-B-Q (Rudy's). She alleges that she fell over shrubbery that
extended over the entry way to the Rudy's restaurant. Appellant alleges that her
fall was a proximate result of a negligently dangerous condition on the property.
In the trial court, Appellee Rudy's filed an amended motion for summary judgment
- including a "traditional" motion and a "no-evidence" motion which was granted
on April 8, 2015. In essence, the motion asserted that the Appellee did not have
constructive notice of a dangerous condition on the premises.
ISSUE PRESENTED
1. Were genuine issues of material fact present at the time of the summary
judgment hearing such that reasonable minds could differ regarding whether or not
Appellee Rudy's had constructive notice of a dangerous condition on the premises.
STATEMENT OF THE FACTS
On August 21, 2009, Appellant Kristin Lee was a customer on the premises
owned and operated by Appellee K & N Management, Inc. d\b\a Rudy's Country
Store and Bar-B-Q located at 2400 North IH-35, Round Rock, Texas 78681.
Appellant Lee alleges that 1) she slipped on a landscaping bush which had fallen
out of the curb planter area and onto the walkway located at the entrance of the
restaurant; 2) the fall was a proximate result of the negligently dangerous condition
2
of the landscaping at the property; 3) P. S. Landscapes, Inc. had recently
maintained the landscaping on the premises and negligently left the bush extending
onto the walkway; and 4) Appellee K & N Management, Inc. negligently failed to
maintain the parking lot, specifically the walkway, and its negligence was a
proximate cause of the Appellant's injuries and damages.
Appellees filed their first amended no-evidence and traditional motion for
summary judgment on February 23, 2015. Lee filed a response, and a hearing was
held on April2, 2015. The trial comi granted the motion on April 8, 2015.
SUMMARY OF THE ARGUMENT
Genuine issues of material fact were present at the time of the summary
judgment hearings before the Trial Court such that reasonable minds could differ
as to whether Appellee Rudy's had constructive notice of a dangerous condition on
the premises.
STANDARD OF REVIEW
As to a traditional motion for summary judgment, it is axiomatic that the
trial court's duty at the summary judgment stage is not to weigh the evidence but to
determine if a material question of fact exists. 1 The trial court must accept as true
evidence favoring the plaintiff nonmovant, indulging every reasonable inference
and resolving all doubts in plaintiffs favor. 2
1
Hucke bee v. Time Warner Entm 't Co., 19 S.W. 3d 413,422 (Tex. 2000)
2
Park Place Hasp. v. Estate of Milo, 909 S.W. 2d 508,510 (Tex. 1995) Timpte Indus. v. Gish,
286 S.W. 3d 306,310 (Tex. 2009).
3
Tex. R. Civ. P. 166 a(i) states in the notes and comments thereto that, to
defeat a no-evidence motion for smnmary judgment, the nonmovant "is not
required to marshal its proof, its response need only point out evidence that raises a
fact issue on the challenged elements." If the nomnovant presents more than a
scintilla of evidence on the challenged elements, she is entitled to a trial on the
merits. 3 In reviewing a no-evidence summary judgment, the appellate court must
consider all of the evidence in the light most favorable to the party against whom
the summary judgment was rendered, crediting evidence favorable to the party if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not. 4
ARGUMENTS & AUTHORITIES
A. Evidence presented to the Trial Court on both motions for summary
judgment raised genuine issues of material fact.
1. Constructive Knowledge Standard.
For a premises owner to have sufficient knowledge of a condition to be held
liable for any injuries caused by the condition,
The owner/operator must have put the foreign substance on the floor
and knew that it was on the floor and negligently failed to remove it, or
the substance must have been on the floor for so long it should have
been discovered and removed in the exercise of ordinary care. 5
3 Ford Motor Co. v. Ridgeway, 82 S.W. 3d 26, 29 (Tex. App. --San Antonio 2002), rev'd on
other grounds, 135 S.W. 3d 598 (Tex. 2004).
4 Timpte Indus. v. Gish, 286 S.W. 3d 306,310 (Tex. 2009).
5 Wyatt v. Fun·'s Supermarket, Inc., 908 S.W.2d 266, 268 (Tex. App. - E1 Paso 1995, no writ)
(emphasis added).
4
To establish constructive knowledge on the part of the premises owner, Lee
must demonstrate that the hazard was (more likely than not) present for sufficient
time for the defendant to have discovered and rectified it. "This rule, while harsh and
demanding on plaintiffs, is nevertheless well established and plaintiffs must always
discharge the burden of proving that the dangerous conditions was either known to
the defendant or had existed for such a length of time that it should have known it." 6
Lee set fmih in the trial court evidence demonstrating that Rudy's had constructive
knowledge of a dangerous condition at the entryway to the restaurant.
2. Lee's Testimony.
Kristin Lee testified that after having one, small, strawberry margarita at
dinner several hours earlier, she rode with her mom and brother to Rudy's for
dessert. 7 Her mom pulled up to the walkway to the entrance at Rudy's, and Kristin
Lee got out of the backseat. 8 Kristin Lee got out of the car, took a couple of steps,
and fell. 9 She fell with her leg beneath her. 10 The fall resulted in her suffering a
fractured ankle that had to be surgically repaired. 11 Eventually, a second surgery to
remove implanted hardware was required. 12
6 Wal-Mart Stores, Inc. v. Gonzalez, (968 S.W.2d 934- Tex. 1998).
7 CR at p. 121 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit A- Kristin Lee depo. at pp. 26-29).
8
!d. (Lee depo at p. 29).
9 !d.
10
!d. (Lee depo at p. 31 ).
11
!d. at pp 122 (Lee depo at pp. 41-44).
12
!d. at p. 123 (Lee depo at p. 49).
5
Appellant Kristin Lee testified that her mom (as evidenced by a letter written
by her mother Mary Lee) eventually detennined that Kristin Lee had tripped over a
landscape bush that extended over the walkway to the restaurant. 13
3. Witness' Testimony.
Mary Lee, Kristin Lee's mother, testified that Justin House (an eyewitness to
the accident, a friend of the Lee family, and also an employee at Rudy's) told the
family that Kristin Lee fell over a landscape bush that was laid over the side of the
planter. 14 Mrs. Lee did not actually see where Kristin Lee stepped when she fell
because Mrs. Lee was driving the stopped car. 15
4. Rudy's employee's Testimony.
Justin House was an employee of Rudy's at the time of the incident. 16 He
was about 25 feet from Kristin Lee when she fell. 17 He observed an obstacle, a
plant, on the sidewalk. 18 The plant had overgrown onto the sidewalk. 19 The plant
protruded out over the sidewalk. 20 When he went back to work in the next day or
two, the plant had been removed. 21
ll I d. at pp. 124 (Lee depo at p. 59).
14 C.R. at p. 131 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit B- Mary Lee depo. at pp. 33-34).
15 I d. at pp. 130 (Mary Lee depo at p. 24).
16
C.R. at p. 138 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit C- depo. of Justin House at p. 8).
17 Jd. at p. 139 (House depo at p. 12).
18 I d. at p. 140 (House depo at p. 17).
19
Jd. at p. 141 (House depo at p. 18).
20 I d. at p. 142 (House depo at p. 21).
21 I d. at p. 144 (House depo at p. 28).
6
Mr. House testified that a landscaping company came out to the scene
regularly (he said once a week). 22 He told the Lee family (he is a friend of
Kristin's brother) that Kristin Lee fell over a plant. 23 He also gave a statement to
the general manager at Rudy's that Kristin Lee fell over some bushes hanging over
the sidewalk. 24 In Mr. House's opinion, the area looked safer after the plants were
eliminated from hanging over the walkway, a main entrance to the restaurant. 25 He
noticed that the plants had been cut back about one week or so later. 26
Mr. House saw Kristin Lee step on a bush protruding over the sidewalk. 27
When asked whether the bush protruding over the sidewalk was a hazardous
condition, Mr. House testified that "as a business owner, yes, I would take more
precautions doing that." 28
5. Written Discovery
In its responses to Inten·ogatories, Rudy's testified that the grounds were
maintained on a weekly basis. 29 Rudy's is not sure how long the bush was on the
ground before the accident. 30
22
I d. at p. 143 (House depo at p. 26).
23
Jd. at p. 145 (House depo at p. 39).
24
Id. at pp. 146-150 (House depo at pp. 46-50).
25
I d. at pp. 151-152 (House depo at pp. 51-52).
26
Id. at p. !53 (House depo at p. 55).
27
Jd. at pp. 154-155 (House depo at pp. 59-60).
28
Id. at p. !56 (House depo at p. 61 ).
29
C.R. at p. 162 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Sununary Judgment Exhibit D- Rudy's Interrogatory answers at #4).
30 Jd.
7
B. Evidentiary Inferences Establish Constructive Knowledge of Defects
The testimony delineated above suggests that the Appellent tripped over
foliage that had been pennitted to extend over a walkway that patrons would
foreseeably be required to use to enter the restaurant. There is no suggestion that
the bush "suddenly" grew over the walkway. Indeed, the reasonable inference is
that the plants grew slowly over the entrance. Unlike the event where a fellow
shopper spills soap on a grocery store floor immediately before the next customer
slips in it, the hazard at issue must logically have existed for a considerable time
before Ms. Lee fell. The bush was observed by a Rudy's employee as an obstacle
as the event took place, the employee thought that the walkway looked safer when
the bush was removed after the event, and the company had a procedure in place
for periodically maintaining the landscaping. Genuine issues of material fact exist
as to how long Rudy's knew or should of known of the hazardous condition on its
premises.
PRAYER
Wherefore, Appellant prays that this Court reverse the judgment of the Trial
Court, and grant each and every request for relief set forth by Appellant, and for
such other relief, at law and in equity, to which Appellant is entitled.
8
Respectfully submitted,
LAW OFFICES OF PRICE AINSWORTH, P.C.
3821 Juniper Trace, #21 0
Austin, Texas 78738
512-233-1111
512-4 72-9157 fax
By: ______________________
Price Ainsworth
State Bar No. 00950300
ATTORNEY FOR APPELLANT KRISTIN LEE
CERTIFICATE OF COMPLIANCE
I certifY that this document was produced on a computer using Microsoft
Word and contains 1644 words, as determined by the computer software's word-
count function, excluding the sections of the document listed in Tex. R. App. P.
9 .4(i)(1 ).
Price Ainswmih
9
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing document
has been served to the following counsel of record as indicated below on the 21st
day ofJuly 2015.
VIA FACSIMILIE- 512-383-0503
Ethan Goodwin
Clark, Trevino & Associates
1701 Directors Boulevard, #920
Austin, Texas 78744
Price Ainsworth
10
IN THE COURT OF APPEALS
THIRD APPELLATE DISTRICT OF TEXAS
AT AUSTIN
KRISTIN LEE,
Appellant
v.
K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BAR-
B-Q
Appellees
ON APPEAL FROM
THE 98th JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
(Honorable Rhonda Hurley)
APPENDIX TO BRIEF OF APPELLANTS
A. Final Summary Judgment signed on AprillO, 2015
II
Filed in The District Court
ofTravis County, Texas
AP: I 0 2015 M0~
Cause No. D-1-GN-11-001839
At l1lJ A
IN THE DISTRICT co~lva L Price, District Clerk
M.
KRISTIN LEE §
§
vs. § TRAVIS COUNTY, TEXAS
§
K & N MANAGEMENT, INC. D/B/A §
RUDY'S COUNTRY STORE AND BAR-B- §
Q; AND P. S. LANDSCAPES, INC. § 98TH JUDICIAL DISTRJCT
FINAL SUMMARY JUDGMENT
On the 2nd day of April, 2015, the Court considered Defendant K & N Management, Inc.
d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion
for Summary Judgment ("the Motion''). After considering the Motion, the summary judgment
evidence, the Response filed by Plaintiff, and K & N Management, Inc. d!h/a Rudy's Country
Store and Bar-B-Q's Objections and Reply, it is the opinion of the Court that Defendant K & N
Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q is entitled to judgment as a matter of
law. It is, therefore,
ORDERED, ADJUDGED AND DECREED that Defendant K & N Management, Inc.
d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion
for Summary Judgment before the Co uti is hereby GRANTED and that the Plaintiff take nothing
against Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q. Costs of
court are taxed against the Plaintiff for which execution shall be levied.
It is further ORDERED, ADJUDGED AND DECREED that Defendant K & N
Management, Inc., d!h/a Rudy's County Store and Bar-B-Q's Objections to Plaintiff's summary
judgment evidence are OVERRULED.
All such other relief sought by way of this action not specifically provided by this
judgment is hereby denied.
SIGNED this~ day of-'~"+'-'\'"_,_J _c_\- - - - . - ' ' 2015.
nm4:::f]n
APROVED AS TO FORM:
CLARK, TREVINO & ASSOCIATES
BY•~~ TBN: 24064492
Mailing Address:
P.O. Box 258829
Oklahoma City, OK 73125-8829
Physical Address:
1701 Directors Boulevard, Suite 920
Austin, Texas 78744
Telephone: (512) 445-1580
Facsimile: (512) 383-0503
ethan. goodwin@farmersinsurance.com
ATTORNEYS FOR DEFENDANT K & N MANAGEMENT,
INC. D/B/A RUDY'S COUNTRY STORE AND BAR-B-Q
LAW OFFICES OF PRICE AINSWORTH, P.C.
BY:
PRICE AINSWORTH
TBN: 00950300
3821 Juniper Trace, #210
Telephone: (512) 233-1111
Facsimile: (512) 479-9157
price@ainsworth-law.com
ATTORNEY FOR PLAINTIFF KRISTIN LEE
SIGNED this _ _ day of _ _ _ _ _ _ _---". 2015.
ruDGE PRESIDING
APROVED AS TO FORM:
CLARK, TREVINO & ASSOCIATES
EY:?~I/_~
~GOOD\IIJN
TBN: 24064492
Mailing Address:
P.O. Box 258829
Oklahoma City, OK 73125-8829
Physical Address:
1701 Di:reators Boulevard, Suite 920
Austin, Texas 7&744
Telephone: (512) 445-1580
Facsimile: (512) 383-0503
ethan.good\Vln@fimnersinsurance.com
ATTORNEYS fOR DEFENDANT K & N MANAGEMENT,
INc. D/B/A RUDYS CoUNTRY STORE AND BAR-B-Q
LAW OFFICES OF 1'RIC1i: AXNSWORTH, l'.C.
~
BY:
PlUCB AINSWORTH
TBN: 00950300
·-----
3821 Juniper Trace, #21 0
Telephone: (512) 233-1111
--
Facsimile: (512) 479-9157
price@ainsworth-law.com
ATTORNEY FOR PLAINTIFF KRISTIN LEE
PKristin Lee v. K & N Management, Inc. D/B/A Rudy's Country Store and Bar-B-Q
Combined Opinion