Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 298th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-13614
Justices Bridges, Myers, and Brown
premises liability action, appellant Jeannie Nethery
(Nethery) appeals the trial court's order granting
traditional summary judgment in favor of appellees Marty
Vincent Turco and Kelly Leanne Turco (the Turcos). In one
issue, Nethery argues the trial court erred by granting the
summary judgment motion. We affirm.
contends the trial court erred by granting the traditional
summary judgment motion filed by the Turcos because there was
insufficient evidence to establish that the allegedly
dangerous condition was open and obvious and that Nethery was
aware of the risk.
to the record, on Thursday, January 8, 2015, at approximately
3:30 pm., Nethery arrived at the former residence of Marty
and Kelly Turco in Highland Park, Texas. Nethery came to look
at the property in her capacity as a realtor with Briggs
Freeman Sotheby's International Real Estate.
Specifically, Nethery received an email invitation from the
Turcos' realtor to attend a private tour of their home
prior to the property being listed. In her deposition,
Nethery said she would not be surprised if somewhere around
fifty people came to view the Turcos' home that day, and
that this "would be a normal tour for a property like
arrived and parked in front of the home. She walked up the
driveway and went inside. After viewing the upstairs and
downstairs portions of the home for approximately ten
minutes, Nethery exited the home. She walked out of the
house, across a landing area, and across a short sidewalk to
the driveway. Nethery then began walking down the circular
driveway when she noticed ice on the driveway near a black
SUV. The ice appeared to be under the vehicle and extending
in front of it towards the sidewalk.
testified in her deposition that she could see the ice did
not cover the entire driveway, but she did not know where it
stopped. She appreciated the ice's presence enough to be
more cautious and attempted to step around it. She testified
that she "was trying to step around it, trying to be
very careful, and I couldn't tell where it ended. . .
." She "was stepping very carefully" to avoid
the ice she knew was present. Nethery also testified that,
before trying to walk around the ice, she did not look at the
other side of the circular driveway to see if she could turn
around and walk the other way without encountering ice. Asked
why she did not do this, she testified, "I thought I
could get around." Nethery stepped on the ice in front
of her and fell, injuring her wrist. Nethery testified that
she did not know whether there was any ice on the other side
of the driveway.
filed suit against the Turcos for negligence. After answering,
the Turcos moved for traditional summary judgment based on
the absence of a legal duty to warn or protect against
conditions that are open and obvious. The trial court granted
the summary judgment motion, and this appeal followed.
moving for a traditional summary judgment must show no
material fact issue exists and it is entitled to judgment as
a matter of law. Tex.R.Civ.P. 166a(c). We review a challenge
to a traditional summary judgment de novo. Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). We must determine whether the movant met its
burden to establish that no genuine issue of material fact
exists and that the movant is entitled to judgment as a
matter of law. Tex.R.Civ.P. 166a(c); Sw. Elec. Power Co.
v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979). We affirm the summary judgment if any of
theories presented to the court and preserved for review are
meritorious. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 157 (Tex. 2004).
landowner has a duty to exercise reasonable care to make the
premises safe for invitees." Austin v. Kroger Texas,
L.P., 465 S.W.3d 193, 202-03 (Tex. 2015). A landowner
confronted with a dangerous condition on the property can
satisfy the duty to an invitee in one of two ways. See
id. First, the landowner can eliminate or mitigate the
dangerous condition such that it is no longer unreasonably
dangerous. Id. Second, and subject to certain
exceptions, the landowner can also satisfy any duty by
providing an adequate warning of the danger to the invitee.
Id.; see also Gen. Elec. Co. v. Moritz, 257
S.W.3d 211, 216 (Tex. 2008); Shell Oil Co. v. Khan,
138 S.W.3d 288, 295 (Tex. 2004). "Ordinarily, the
landowner need not do both, and can satisfy its duty by
providing an adequate warning even if the unreasonably
dangerous condition remains." Austin, 465
S.W.3d at 202-03; see also TXI Operations, L.P. v.
Perry, 278 S.W.3d 763, 765 (Tex. 2009); State v.
Williams, 940 S.W.2d 583, 584 (Tex. 1996). The
Austin court described the duty as requiring the
landowner "to make safe or warn against any concealed,
unreasonably dangerous conditions of which the landowner is,
or reasonably should be, aware but the invitee is not."
Austin, 465 S.W.3d at 203. This is because the
landowner is typically in a better position than the invitee
to know the property, and thus rectify or warn about any
hidden hazards on the premises. Id. At the same
time, "[w]hen the condition is open and obvious or known
to the invitee, however, the landowner is not in a better
position to discover it." Id. In such a
situation, the condition no longer poses an unreasonable risk
"because the law presumes that invitees will take
reasonable measures to protect themselves against known
risks, which may include a decision not to accept the
invitation to enter onto the landowner's premises."
Id. "A landowner 'is not an insurer of [a]
visitor's safety.' " Id. (quoting
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,
769 (Tex. 2010)). As a result, "a landowner generally
has no duty to warn of hazards that are open and obvious or
known to the invitee." Id. at 204.
summary judgment evidence in this case establishes that the
alleged dangerous condition of which Nethery complains-a
patch of ice on the Turcos' driveway-was open and obvious
or otherwise known to her. She admitted she was aware of and
appreciated the presence of ice on the Turcos' driveway
before she slipped and fell on it. Nethery argues the
reasonableness of her efforts to avoid the ice presented a
fact issue for trial because "she was unaware of the
extent of the ice and was taking precautions to avoid the
ice." But as we noted above, the Texas Supreme Court in
Austin stated that when, as in this case, the
condition is open and obvious or otherwise known to the
invitee, "the law presumes that invitees will take
measures to protect themselves against known risks."
Id. at 203. Under controlling precedent, the
Turcos' duty to appellant was negated by Nethery's
admission that the ice was open and obvious or otherwise
known to her. See id. at 204.
also argues that even if the Turcos owed no duty to protect
or warn her against an open and obvious condition, an
exception to the no-duty rule applies. The court in
Austin specifically noted two exceptions to the
general no-duty rule for open and obvious conditions: the
"criminal activity" exception and the
"necessary use" exception. Id. at 204-06.
The criminal activity exception has no application here
because no one is arguing the allegedly dangerous condition
resulted from foreseeable criminal activity of third parties.
See id. at 205. The necessary use exception,
however, may arise when the invitee necessarily must use the
unreasonably dangerous premises, and despite the
invitee's awareness and appreciation of the dangers, the
invitee is incapable of taking precautions that will
adequately reduce the risk. Id. at 204. This
necessary use exception applies when (1) it was necessary for
the invitee to use the portion of the premises containing the
allegedly unreasonably dangerous condition and (2) the
landowner should have anticipated that the invitee was unable
to avoid the unreasonable risks despite the invitee's
awareness of them. See id. at 207 (discussing
Parker v. Highland Park, Inc., 565 S.W.2d 512, 520
(Tex. 1978)); see also Lopez v. Ensign U.S. Southern
Drilling, LLC, ___ S.W.3d ___, 2017 WL 1086518, at *9-10