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Kinsley v. Cartwright's Ranch House, LLC

Court of Appeals of Texas, Second District, Fort Worth

April 6, 2017






         I. Introduction

         Appellee John Clayton Cartwright owns and operates Appellee Cartwright's Ranch House, LLC, (CRH) a restaurant in Denton, Texas. One morning, after Margaret and Laddie Kinsley ate breakfast together at CRH, as Laddie negotiated his walker off the curb in front of CRH and into the parking lot on the passenger-side of the couple's vehicle, he fell. He was taken to the hospital where he died a few days later. Appellant Margaret Kinsley, individually and on behalf of Laddie Frances Kinsley, deceased, filed suit against Appellees asserting claims of negligence and negligence per se and asserting a statutory civil rights claim.[2] Following a trial, a jury returned a take-nothing verdict, and the trial court entered judgment on the jury's verdict. Margaret perfected this appeal and raises two issues. She claims that charge error exists, asserting that the trial court misstated the law in the negligence questions submitted to the jury, and she challenges the directed verdict on her negligence per se claim. For the reasons set forth below, we will affirm the trial court's judgment.

         II. Factual Background

         Margaret drove Laddie, her husband of over forty years, to eat breakfast at CRH. CRH security cameras recorded the events that occurred both inside and outside the restaurant. Margaret parked in a handicapped spot directly in front of the restaurant. The front end of the Kinsleys' vehicle was pointed at the front door of CRH. Margaret exited the driver's side of the vehicle, retrieved a walker from the rear of the vehicle, and brought it to Laddie before he exited the passenger side. Laddie was wearing a boot on one foot because of a toe surgery. Laddie used the walker, and Margaret further assisted him by using a gait belt provided by Laddie's physical therapist. The duo proceeded a short distance through the parking lot, up a handicapped ramp, and onto the sidewalk in front of CRH.

         According to Margaret, the sidewalk area in front of the restaurant was "littered" with wooden booths, tables, and chairs for outdoor seating for CRH's guests. The outdoor furniture was owned by CRH, was arranged daily on the sidewalk area by CRH, and provided an additional twenty-eight seats for patrons. Margaret described the area as an obstacle course, requiring Laddie to maneuver around furniture and requiring Margaret to move a chair.

         After the Kinsleys were seated, Margaret located CRH's owner and manager, Cartwright, and complained that "it's a shame that a veteran would have to go through this and that he had served his country and anyone that was disabled shouldn't have to go through that path." Cartwright testified that

         Margaret told him that her husband had not been able to step up onto the curb in front of their vehicle because of the furniture on the sidewalk area and asked him to move it. Margaret denied asking Cartwright to move the furniture in front of their vehicle. While the Kinsleys ate, Cartwright moved the outdoor tables that were directly in front of the Kinsleys' parked vehicle so that no furniture blocked access to either side of the Kinsleys' vehicle; one small round table remained directly in front of the license plate of the Kinsleys' vehicle. Upon exiting CRH, Laddie-- who was in front of Margaret, using his walker while Margaret held the gait belt-- did not go to his left through the patio furniture area to the handicap ramp but instead exited in a straight line from the front door of CRH to the curb at the front end of the passenger side of the couple's vehicle. As Laddie moved the front legs of his walker forward off the curb, the back legs of the walker remained up on the curb. Laddie hung onto the front of the walker, which was lower, and fell forward, landing face-first on the ground. Margaret, who was using the gait belt, was pulled forward on top of Laddie.

         Video footage from CRH's security cameras was played for the jury. The footage showed the Kinsleys' trip from their car into the restaurant, the Kinsleys being seated inside CRH, Cartwright moving the tables as he said Margaret had requested, the Kinsleys exiting CRH, and Laddie's fall.

         III. Any Charge Error Was Harmless

         A. The Parties' Positions

         In her first issue, Margaret asserts that the trial court's submission of premises liability negligence instruction (d) in jury questions 1 and 5 was erroneous. Margaret asserts that instruction (d) improperly shifted the burden to her as the plaintiff to disprove that the condition was not open and obvious. Margaret argues that no instruction concerning "open and obvious" should have been given at all but that if given, such an instruction should have focused on whether the risk of harm from the condition was open and obvious, not on whether the condition itself was open and obvious.

          Because it was undisputed that Margaret and Laddie were invitees, jury questions 1 and 5[3] provided, in pertinent part:

         Questio ...

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