concurring
Laura Vasquez contended at oral argument that a Rule 91a motion was premature because additional time for discovery was necessary to develop the facts of the underlying case. Vasquez implies that had she had an opportunity to engage in additional discovery, she would have been able to plead facts to establish appellees owed a duty to repair or warn of -a dangerous condition , on a public road. Vasquez did not raise these issues in her brief and, thus, addressing them is not necessary to the disposition of the appeal. See Tex. R. App. P. 38.1(i); Tex. R. App. P. 47.1. Although I join the majority’s opinion and judgment, I write separately because these issues raise important questions about whether Vasquez could have pled additional facts in support of the alleged cause of action to establish appellees owed a duty.
Rule 91a
The legislative history and the plain language of Rule 91a assist tidal courts in determining whether a Rule 91a dismissal is appropriate or whether the claimant should have an opportunity to conduct additional discovery. In 2011, the Texas Legislature enacted section 22.004(g) of the Civil Practice & Remedies Code and required the Supreme - Court of Texas to “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.” Tex. Gov’t Code Ann. § 22.004(g) (West Supp.2015). The legislative history reflects an intent to provide for the “early dismissal of actions” involving causes of action that lack a. basis in law or fact. Texas House Research Organization, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). The purpose was “to make the civil justice system more efficient, less costly, and more accessible by reforming certain procedures in these cases and making available certain new procedures.” House Comm, on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011); Senate Comm, on State Affairs, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). To implement section 22.004(g), the supreme court adopted Rule 91a, which allows a party to file a motion to dismiss “within 60 days after the first pleading containing the challenged cause of action is served on the movant.” See Tex.R. Crv. P. 91a.3(a) & cmt. (2013).
Rule 91a contemplates that in response to a Rule 91a motion, a claimant may defend or amend her pleadings. See Tex.R. Crv. P. 91a.4, 91a.5. Under Rule 91a.4, a claimant may defend her pleadings by filing a response and arguing her cause of action has a basis in law and fact. Tex.R. C iv. P. 91a.4. Under Rule 91a.5, a claimant may, three days before the hearing on the motion to dismiss, amend her pleadings or nonsuit her cause of action subject to refiling a pleading that alleges sufficient facts. See R. 91a.5(a), (b); see also Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure & Review, 33 Rev. Litig. 469, 519-24 (2014) (describing options to respond to a Rule 91a motion). “Rule 91a does not mention discovery, much less include an automatic stay.” Id. at 558-59. The issue of “whether the non-movant has a right to discovery before the motion to dismiss is *457heard” is “bound to arise under Rule 91a.” Id. at 558.
A Rulé 91a motion is an appropriate mechanism to challenge the pleadings when the facts' pled “together with inferences reasonably drawn' from them do not entitle the claimant to the relief sought.” Tex.R. Civ. P. 91a.li When the factual allegations in the plaintiffs petition establish the plaintiff is not entitled to the relief sought as a matter of law, permitting discovery to develop other facts would undermine Rule 91a’s purposes and would not place, the plaintiff in any better of a position to allege facts entitling her to relief. The matter before us presents such a case.
Here, the Rule 91a motions filed in-the trial court were not based on 'the lack of factual allegations, but on the facts- Vasquez had alleged in her first amended petition. Appellees contended the facts Vasquez alleged, taken as true and together with reasonable inferences drawn from them, did not entitle Vasquez to-the relief she sought because, as energy companies whose employees drove on a public road to operate and service oil and gas wells, they owed no legal duty to repair ,or warn of dangerous conditions - on a public road. Vasquez suggested at oral argument that additional time for discovery would allow her to develop the facts as to how appel-lees created the dangerous condition on Krueger Road. Vasquez argued she should have the opportunity to prove whether ap-pellees’ vehicles were overweight, oversized, and speeding.
However, based on our limited scope of review, we take as true that appellees’ vehicles were indeed, overweight, oversized, and speeding. How their vehicles became so is of no relevance. We also take as true that appellees created a dangerous condition on Krueger Road. Time for additional discovery would only allow Vasquez to attempt to prove how appellees created the dangerous condition. Under the facts of this case, how appellees created the dangerous condition is of no relevance to establish.'whether 'appellees owed a legal duty to repair or warn of a dangerous. condition on a public road.
Duty to Repair and WaRn
Users of public roads have-a duty of ordinary care not to create foreseeable risks of harm to other drivers on the road. See Hatcher v. Mewbourn, 457 S.W.2d 151, 152 (Tex.Civ.App.-Texarkana 1970, writ ref'd n.r.e.). But “when a claim does not result from contemporaneous activity, the [claimant] has no negligent-activity claim, and his claim sounds exclusively in premises-liability.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215 (Tex.2015). A claim does not result from a contemporaneous activity when it is a premises condition, and not a contemporaneous activity, that causes the injury. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). A claim that arises from a dangerous condition on a road, such as a rural unpaved road with potholes, is a premises condition, and a claim based on such a dangerous condition is a premises liability claim. TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex.2009). The same rules of premises liability for private property apply to public property. State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974).
After the Rule 91a motions were filed in the trial court, Vasquez did not amend her pleadings but, instead, defended her live pleading as alleging sufficient facts to establish appellees owed a duty. See Tex.R. Giv. P. 91a.4, 91a.5. Vasquez alleged the following facts: . .
Every day, [appellees] sent, and still sends numerous loaded and unloaded trucks up and down Krueger Road in La Salle County, Texas to operate and service the wells. [Appellees], knowing La *458Salle County could not repair Krueger Road as fast as [appellees] destroyed it, created a: dangerous condition for all drivers on ¡Krueger Road. Even though [appellees] created-a dangerous condition, they failed to fix the road, and/or provide any warnings to drivers on Krueger Road.
On August 4, 2012, Jose Vasquez was operating a vehicle on Krueger. Road when a cloud of dust caused him to lose sight of the road. The cloud of dust was caused by the dangerous condition of the road and the negligent driving of a Lewis Energy truck travelling immediately in front of Jose' Vasquez. Because of the. dilapidated and dangerous condition of the road, it was impossible for Jose Vasquez to . see where the road was. He drove into a ditch which caused his vehicle to flip over. Jose Vasquez died as a result of the incident.
In the “Causes of Action” section of her pleading, Vasquez further alleged:
Krueger Road was once a safe, paved road for the public. Now, Krueger Road is a dilapidated,' dangerous, dirt road with potholes, bumps, crevices and no markings left to determine the proper lanes of travel. The reason Krueger Road is so dangerous 'is because of the .[appellees’] actions. [Appellees’] drivers continually drive down Krueger Road at a high rate of speed, operate heavy and maybe overweight vehicles on Krueger Road, and. operate vehicles that [appel-lees] knew Krueger Road could not handle.
The trial court severed Vasquez’s “negligent driving” cause of action against the Lewis appellees into a new case.
Vasquez’s remaining cause of action is based on injury caused by the condition of a road, and sounds exclusively in premises liability. See Austin, 465 S.W.3d at 215; TXI Operations, L.P., 278 S.W.3d at 76465; Keetch, 845 S.W.2d at 264; cf. Tennison, 509 S.W.2d at 562. Vasquez alleged Jose died in a car accident because “it was impossible for Jose Vasquez to see where the road-was.” Vasquez alleged “the dilapidated and dangerous condition of the road” caused Jose’s, inability to see where the road was, Thus, ⅛ was the condition of the road, not appellees’ negligent or illegal operation of.speeding, overweight vehicles that caused Jose!s inability to see where the road was. .
Relying on Buchanan v. Rose, Vasquez argues appellees had a “duty to do something” because they knowingly created a dangerous condition on Krueger Road. 138 Tex. 390, 159 S.W.2d 109 (1942). In her brief, Vasquez argues that the “something” in this case was to repair and .warn about the dangerous condition on Krueger Road. Although Vasquez alleged the dangerous condition was that Krueger Road was dilapidated and-.covered with potholes, bumps, crevices, and dirt, Vasquez stated at oral argument she was not arguing ap-pellees had a duty to reconstruct the road. Instead, Vasquez argued appellees had a duty to repair by “taking a water truck down the road once a day” and a duty to erect warning signs along Krueger Road.
However, a duty to repair or warn of a dangerous condition on a premises generally does not extend to those who do not own, possess, or control the premises. See Allen Keller Co. v. Foreman, 343 S.W.3d 420, 426 (Tex.2011). Individuals who drive on public roads exercise a public right of access, but they do not own, possess, or control public roads. See id. at 425-26. In Allen Keller Co. v. Foreman, the supreme court held that a contractor who created a dangerous condition on a public road had no duty to repair or warn of a dangerous condition. Id. The supreme court rejected the argument that the contractor had a duty to warn drivers because *459the contractor “did not own the property or the highway right-of-way, and was not in a position to erect permanent signs or other devices to warn the public of the [condition].” Id. The supreme court also rejected the argument that the contractor had a duty to repair the dangerous condition, in part, “because [the contractor] did not own the property, [and] it was not in a position to make decisions about how to make the premises safe.” Id. at 426. Generally, the same is true of drivers who use public roads.
Furthermore, Buchanan is not controlling because the supreme court therein held that the defendant driver had no legal duty to warn other drivers. 138 Tex. at 392-93, 159 S.W.2d 109. The supreme court explained, that, in other cases with different facts, a driver would have the duty to warn other drivers of a dangerous condition that the driver created, even if the condition was not negligently created. See id. at 391-92, 159 S.W.2d 109, , 110. This discussion was dicta, and the laws and standards for road safety have significantly changed since the early 1940s. The supreme court’s much-more-recent holdings in Allen Keller Co. and in Austin further limit the persuasiveness of Buchanan ’s dicta.
Conclusion
We need not decide in this case what the “something” is, if anything, appellees had a duty to do. Vasquez argues that appellees had a duty to take water trucks up and down Krueger Road or to warn other drivers by erecting signs in the public right of way. Here, they do not. Vasquez’s cause of action sounds exclusively in premises liability under Austin. Under Allen Keller Co., a premises-liability duty to repair or warn about a dangerous condition on a public road does not extend to an individual who does not own, possess, or control the road, even if the individual created the dangerous condition. Because we must take as true Vasquez’s allegation that ap-pellees created the dangerous condition on Krueger Road, the manner in which appel-lees created the dangerous condition is not relevant to whether appellees owed a legal duty to repair or warn if appellees did not own, possess, or control Krueger Road. Permitting Vasquez to conduct additional discovery to develop facts about how ap-pellees created the .dangerous condition on Krueger Road would therefore defeat Rule 91a’s purposes and would not place Vasquez in any better of a position to allege facts that appellees owned, possessed, or controlled Krueger Road or establish her entitlement to the relief sought. ■
Rebeca C. Martinez, Justice, dissenting
I disagree that Laura’s pleadings entirely fail to assert the basis of a claim of negligence against Appellees. Laura’s pleadings contain an assertion that Appel-lees .knew they created a dangerous condition on Krueger Road, yet failed to provide any warning to other drivers,’ including José. Thus, I belieye that Laura has — for purposes of surviving a Rule 91a motion to dismiss — sufficiently alleged that, a duty was imposed on Appellees to warn fellow travelers of the dangerous condition they created by their negligent conduct on Krueger Road. Accordingly, I respectfully dissent.
“Rule 91a is unique, an animal unlike any other in its particulars.” Wooley v. Schaffer, 447 S.W.3d 71, 84 (Tex.App.-Houston [14th Dist.] 2014, pet. denied) (Frost, J., concurring). Rule 91a allows a party to move to-dismiss a baseless cause of action on the grounds that it has no basis in law or fact. Tex.R. Civ. P. 91a.l. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from *460them, do not entitle the claimant to the relief sought.” Id. Unlike a plea to the jurisdiction or a motion for summary judgment, the trial court must decide the motion based solely on the pleading of .the cause of action, together with any pleading exhibits permitted by Rule 59. Id. R. 91a.6 (emphasis added).
The determination of whether a cause of action has any basis in law is a legal question that this court reviews de novo, based purely on the allegations of the live petition' 'and any attachments thereto. Wooley, 447 S.W.3d at 73-77. In conducting our review, “we must construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact.” Id. at 76.
Laura’s First Amended Petition asserted three causes of action: (1) negligent use and operation of vehicles, (2) negligent operation of business, and (3) gross negligence. As to each, Laura alleged the following facts in her petition: Appellees, as owner or operators of oil or gas wells in the area around Krueger Road in La Salle County, had knowledge of the following before they began operating-the wells: it takes almost 1,200 loaded trucks to' bring one oil or gas well into production; over 350 trucks are required per year for maintenance of an oil or gas well; and almost 1,000 trucks are needed every five years to re-fracture a well. Appellees sent numerous loaded and unloaded trucks up and down Krueger Road on a daily basis to operate and service the wells, and Appel-lees created a dangerous condition on Krueger Road because- they knew the county could not repair the road as fast as Appellees destroyed it. Even though Ap-pellees created a dangerous condition, they failed to fix the road, and/or provide any warnings to drivers on Krueger Road. On August 4, 2012, José Vasquez was operating a vehicle on Krueger Road when a cloud of dust caused him to lose sight of the road. The cloud of dust was caused by .the dangerous condition of the road and the negligent driving of a Lewis Energy truck traveling immediately in front of José. Because of the dilapidated and dangerous condition of the road, it was impossible for José to see where the road was; he drove into a ditch which caused his vehicle to flip over; He died as a result of the incident.
■ As to both her negligent use and operation of vehicles cause of action and her ■negligent operation of business cause of action, Laura asserted that “Defendants knew they created a dangerous condition and failed to fix the road, failed to attempt to prevent injuries, and failed to provide any warnings to drivers on Krueger Road, .such as José Vasquez.”
The Rúle 91a motion to dismiss asserted Laura’s negligence claims had no basis in law because Appellees owed no legal duty to José. See Tex.R. Crv. P. 91a.l; 91a.2. The trial court granted the Rule 91a motion “on the grounds Plaintiffs Cause of Action has no basis in law.” A cause of action for negligence requires three elements: a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. See, e.g., D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). The majority agrees that Appellees owed no legal duty to warn of any dangerous condition on Krueger Road. The majority, however, fails to restrict its analysis solely to the face of Laura’s pleadings.: Instead, the majority opinion is burdened by an incorrect premise that a plaintiff must plead facts to “establish” and “support” its claims with “proof’ to sufficiently state the essential elements of a claim, and it necessarily ignores the assertion we-must take *461as true — that Appellees knew their negligent conduct caused a dangerous condition on Krueger Road. This may be because the majority relies heavily on case law that predates the enactment of Rules 911 and 91a, as well as Rule 782, and that involves judgments where appellate review is based on evidence supporting an allegation of “duty.” There is no authority cited that supports a determination that the pleadings before us in this case fail to assert a cognizable claim, or that additional factual allegations are required to “support the existence of a legal duty.”
Here, the proper question is whether the negligence causes of action, taking as true the factual allegations as pled by Laura, along with all reasonable inferences drawn from them, would entitle Laura to the relief sought. See Tex.R. Civ. P. 91a.l. I believe they do.
The Texas Supreme Court has held that: [I]f one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own ' safety may be injured by the dangerous situation so created, the one creating the same must' give warning of the danger or be responsible for the consequences.
Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (Tex.1942).3 Thus, a duty to warn may be imposed where one has created a dangerous situation on a public road and it reasonably appears or should appear to him that others may be injured thereby. .See id. It must therefore be determined whether Laura’s pleadings allege that (1) Appellees knew they created a dangerous' situation on Krueger Road and (2) “it reasonably appear[ed]” to Ap-pellees that fellow travelers would- be injured by the dangerous situation created on Krueger Road. If so, she has sufficiently pled that Appellees owed a duty to warn of the dangerous condition they created on Krueger Road.
Turning to Laura’s pleadings, and taking the factual assertions contained therein as true, she alleges that Appellees knew Krueger Road was dangerous because their vehicles were destroying the road. As to her negligent use and operation of vehicles claim, Laura alleges that Appel-lees operated heavy and potentially overweight vehicles at a high rate of speed on a road that they knew could not handle such traffic and that they knew was being destroyed faster than the county could repair it. As to her negligent operation of business claim, she further alleges that'in addi*462tion to negligently operating their own vehicles on Krueger Road, Appellees also hired, commissioned, contracted, and required vehicles- operated by other companies and individuals to use Krueger Road knowing these vehicles would cause further damage to Krueger Road. Both causes of action contain assertions that Appellees knew, their conduct created ■ a dangerous condition — including potholes, bumps, crevices, and no markings left to determine the proper lanes of travel — on Krueger Road. In addition, Laura alleged that Appellees failed to provide any warnings of the dangerous condition they created “to drivers on Krueger Road, such as José Vasquez.” Pursuant to Rule 91a, we may reasonably infer that it reasonably appeared or should have appeared to Ap-pellees that fellow' travelers, including José, would be injured by the dangerous situation they created on Krueger Road. Accordingly, Laura’s pleadings alleged sufficient facts to supp’ort each essential element of her negligence causes of action.4
Because Appellees only attacked the gross negligence claim on the basis that no legal duty was owed, and I have concluded that the pleadings sufficiently allege that a duty was in fact owed by Appellees, I would hold that the gross negligence claim is likewise viable. Thus, Laura has sufficiently alleged facts that would entitle her to the relief sought, under all three causes of action asserted in her First Amended Petition. Whether the evidence later proves or negates any essential element of a cause of action, as asserted, is a question for another day. It is not this court’s role, in reviewing the granting of a Rule 91a motion, to determine prematurely the merits of an alleged cause of action, but rather to recognize the foundation of one.
Accordingly, I believe the trial court erred in granting the Rule 91a motion to dismiss in its entirety, and I would reverse the judgment of the trial court and remand the case for further proceedings.
. A “defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading” may be excepted to. See Tex. R. Civ. P. 91 (“particularity” no longer required) (enacted 1941).
. The source of Rule 78 is District and County Court Rule 3, which omitted “to enable the plaintiff to state all the facts presenting his cause of action, and such other facts as may . be required to rebut &e facts that may be stated in the original and supplemental petitions as pleaded by the defendant,” at the end of first sentence. See Tex. R. Civ. P. 78.
. The majority relies heavily on Buchanan and Grapotte v. Adams, 130 Tex. 587, 111 S.W.2d 690 (Tex.1938), despite each case seeking review of evidence supporting a final judgment and involving a defendant alleged to be acting without negligence or knowledge of having created a dangerous condition. No cited case by the majority offers any instruction regarding the pleading requirements' in asserting a cognizable claim to avoid dismissal under Rule 91a. Reading the Rules in context, I do not believe a Rule 91a motion to dismiss is a proper vehicle to attack the sufficiency of pleadings at the initial stages of suit but, instead, is the procedure available to dismiss a groundless action lacking a basis in law regardless of the facts asserted to support it.
. Appellees do not challenge on appeal the remaining negligence elements. Nonetheless, Laura has sufficiently alleged that Appellees breached the duty owed "by negligently using and operating their vehicles on Krueger Road in such a manner as to'cause the road to become dangerous. This breach of [Appel-lees’] legal duty caused Plaintiffs’ injuries and damages.”