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Phillips v. Abraham

Court of Appeals of Texas, Fourteenth District

April 7, 2017

JOSEPH MICHAEL PHILLIPS, Appellant
v.
CHERIYAN ABRAHAM AND MARY ABRAHAM, Appellees

         On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2013-59832

          OPINION

          Kem Thompson Frost Chief Justice.

         In this premises-liability case, a former tenant appeals the trial court's summary-judgment dismissal of his personal-injury claims against his former landlords based on an allegedly dangerous condition at the end of the driveway on the leased premises. Applying the Supreme Court of Texas's opinion in Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015), we conclude that the trial court did not err in granting summary judgment on the ground that the landlords had no duty to warn the tenant or to repair the driveway because the tenant knew about the driveway's condition months before the occurrence made the basis of this suit. We affirm.

         I. Factual and Procedural Background

         Appellant/plaintiff Joseph Michael Phillips leased real property in Friendswood, Texas and the house constructed on it (the "Property") from appellees/defendants Cheriyan Abraham and Mary Abraham under a written residential lease. Phillips alleges that while the lease was in effect, in January 2013, he lost his footing and fell while attempting to walk up the driveway. According to Phillips, he lost his footing because the driveway "was in disrepair with many loose and broken rocks." Phillips claims he broke his back as a result of the fall. Phillips sued the Abrahams, asserting a negligence claim and seeking exemplary damages based on the Abrahams' alleged gross negligence.

         The Abrahams filed a motion for summary judgment asserting the following traditional grounds:

(1) as lessors of the Property, the Abrahams owed no negligence duty to Phillips, the lessee, unless they had written notice of the need for repair, as required by the lease;
(2) the Abrahams had no duty to warn Phillips or to repair the driveway because the condition of the driveway was open and obvious or because Phillips knew about the condition for at least six months before the occurrence.

         In the motion, the Abrahams also asserted other grounds that appeared to be an attempt to seek a no-evidence summary judgment.

         The Abrahams later filed a supplemental summary-judgment motion, attaching more evidence and asserting the following additional grounds:

(1) the Abrahams had no duty to repair the part of the driveway where Phillips fell because that area is not within the property description in the Abrahams' deed to the Property and they have no duty to repair property that they do not own, occupy, or control;
(2) there is no evidence the Abrahams owned or controlled the area in which the accident is alleged to have occurred; and
(3) Phillips has failed to come forward with evidence that the alleged dangerous condition posed an unreasonable risk of harm.

         Phillips filed an initial summary-judgment response with no evidence attached. In his response, Phillips stated that although he knew of the defect, "he did not know of the specific area or stone that may come [loose] at any time at the end of the drive." Phillips filed an amended response, to which he attached his affidavit. On appeal, Phillips admits in his ...


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