ACCEPTED
03-15-00243-CV
6444413
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/11/2015 1:12:18 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00243-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD APPELLATE DISTRICT OF TEXASAUSTIN, TEXAS
AT AUSTIN 8/11/2015 1:12:18 PM
JEFFREY D. KYLE
Clerk
KRISTIN LEE,
Appellant
v.
K&N MANAGMENT, INC. d\b\a RUDY'S COUNTRY STORE and
BAR-B-Q
Appellees
ON APPEAL FROM
THE 98th JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
(Honorable Rhonda Hurley)
APPELLANT'S REPLY BRIEF TO APPELLEES
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
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................. 11
INDEX OF AUTHORITIES............................................................................. Ill
INTRODUCTION ............................................................................................ 1
POINTS OF REPLY......................................................................................... I
1. The plant growth was dangerous.
2. Rudy's had opportunity to discover plant growth prior to Lee's fall.
ARGUMENT AND AUTHORITIES............................................................... 1
A. The plant growth was dangerous. ...... ...................... ............................... 1
B. Rudy's had opportunity to discover plant growth prior to Lee's fall..... 3
PRAYER........................................................................................................... 4
CERTIFICATE OF SERVICE......................................................................... 5
11
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant Kristin Lee files this Reply Brief in response to the Brief filed by
Appellees K&N Management, Inc. d\b\a Rudy's Country Store and Bar-B-Q
("Rudy's").
INTRODUCTION
On July 22, 2015, Kristin Lee filed her Appellant's Brief. Appellees K&N
Management, Inc. d\b\a Rudy's Country Store and Bar-B-Q filed their brief on
July 24, 20 15. Appellant now files her Reply.
POINTS OF REPLY
1. The plant growth was dangerous.
2. Rudy's had opportunity to discover plant growth prior to Lee's fall.
ARGUMENTS AND AUTHORITIES
A. The plant growth was dangerous.
In Appellee Rudy's brief, two points of contention were raised. Those
points are addressed here in the order they appear in Appellee's brief. First, the
plant growth that protruded over the sidewalk where Ms. Lee fell constituted a
hazardous condition. Evidence of such condition was presented through the
deposition of a former Rudy's employee.
1
Justin House was an employee of Rudy's at the time of the incident. 1 He
was about 25 feet from Kristin Lee when she fe11. 2 He observed an obstacle, a
plant, on the sidewalk. 3 The plant had overgrown onto the sidewalk.4 The plant
protruded out over the sidewalk. 5 When he went back to work in the next day or
two, the plant had been removed. 6
Mr. House testified that a landscaping company came out to the scene
regularly (he said once a week). 7 He told the Lee family (he is a friend of Kristin's
brother) that Kristin Lee fell over a plant. 8 He also gave a statement to the general
manager at Rudy's that Kristin Lee fell over some bushes hanging over the
sidewalk. 9 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. 10 He
noticed that the plants had been cut back about one week or so later. 11
12
Mr. House saw Kristin Lee step on a bush protruding over the sidewalk.
When asked whether the bush protruding over the sidewalk was a hazardous
1
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).
2
Jd. at p. 139 (House depo at p. 12).
3 Jd. at p. 140 (House depo at p. 17).
4
Jd. at p. 141 (House depo at p. 18).
5
Jd. at p. 142 (House depo at p. 21).
6
!d. at p. 144 (House depo at p. 28).
7
/d. at p. 143 (House depo at p. 26).
8
/d. at p. 145 (House depo at p. 39).
9
/d. at pp. 146-150 (House depo at pp. 46-50).
10
/d. at pp. 151-152 (House depo at pp. 51-52).
11
/d. at p. 153 (House depo at p. 55).
12
/d. at pp. 154-155 (House depo at pp. 59-60).
2
condition, Mr. House testified that "as a business owner, yes, I would take more
13
precautions doing that." Such testimony, by a Rudy's employee, established the
presence of a hazardous condition on the premises in question.
B. Rudy's had opportunity to discover plant growth prior to Lee's fall.
The second point of contention raised in Appellee's brief concerns the
element of constructive knowledge of the hazardous condition.
The testimony delineated above suggests that the Appellant tripped over
foliage that had been permitted 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.
13
/d. at p. 156 (House depo at p. 61 ).
3
PRAYER
Accordingly, Appellants pray that this Court reverse the judgment of the
trial court grant their request for all relief, at law and in equity to which they are
entitled.
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 503 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 Ainsworth
4
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 11th
day of August 2015.
VIA FACSIMILIE- 512-383-0503
Ethan Goodwin
Clark, Trevino & Associates
1701 Directors Boulevard, #920
Austin, Texas 78744
Price Ainsworth
5