Appeal from the 129th District Court Harris County, Texas
Trial Court Cause No. 2014-53029A
consists of Justices Boyce, Busby, and Wise.
Brett Busby, Justice
Ruth Hernandez was accidentally shot in the ankle by a guest
at a gathering hosted by appellee Oziel Gonzalez-Flores.
Hernandez sued Gonzalez-Flores for negligence, alleging
theories of premises liability as well as negligent activity.
Following discovery, Gonzalez-Flores filed a traditional and
no-evidence motion for summary judgment in his favor, which
the trial court granted. Hernandez appeals the judgment,
raising two issues.
first issue, Hernandez argues the trial court erred in
granting summary judgment on her premises liability theory
because the record shows a gun was left on a table at
Gonzalez-Flores's party where guests were drinking
alcohol, which raises a genuine issue of material fact
regarding whether Gonzalez-Flores was grossly negligent. We
conclude this evidence alone does not show Gonzalez-Flores
was subjectively aware of an extreme degree of risk. In her
second issue, Hernandez argues the trial court erred in
granting summary judgment on her negligent activity theory.
We conclude the leaving of a gun is not an ongoing activity.
Therefore, the summary judgment record does not support a
negligent activity theory. We affirm.
decided to host a get-together and invited some friends and
family over to barbecue. Gonzalez-Flores's cousins,
Gabino Flores and Junior Flores, were among the people who
attended. At the time, Hernandez was dating Junior, and he
and Gabino invited Hernandez to Gonzalez-Flores's house
for the get-together.
started arriving between 5:00 p.m. and 7:00 p.m. Gabino
arrived with his four-year-old son, who went inside the house
to play with Gonzalez-Flores's son. Someone at the
get-together went to the store to buy food and beer. The
guests were gathered outside while Gonzalez-Flores and others
cooked at the barbecue pit. The beer was outside near a
picnic table. Gonzalez-Flores and other guests drank beer,
and Hernandez drank wine that she brought for herself.
Although people were drinking, no one appeared intoxicated.
brought a .45 caliber pistol. While it was still light
outside, Gonzalez-Flores and some of the guests, including
Hernandez, shot the gun at soda cans in the backyard.
Hernandez testified in her deposition that until she was
accidentally shot in the ankle, she never felt unsafe.
point, the gun was placed on the picnic table. Around 11 p.m.
or 11:30 p.m., Hernandez, Gabino, and Junior were standing
around the table when Gabino grabbed the gun and accidentally
shot Hernandez in the ankle. Gonzalez-Flores was away from
the table with his back turned and did not see who shot
sued both Gonzalez-Flores and Gabino for negligence.
Hernandez asserted both premises liability and negligent
activity theories against Gonzalez-Flores. Following
discovery, Gonzalez-Flores filed a traditional and
no-evidence motion for summary judgment, asserting the
following grounds: (1) there was no evidence he breached his
duty as a premises owner; (2) he had no duty as a social host
under the negligent activity cause of action; and (3) there
was no evidence that he created a dangerous situation that
would give rise to a duty. Hernandez responded that there was
evidence raising a fact issue that Gonzalez-Flores was
grossly negligent as a premises owner, that he owed a duty of
reasonable care to Hernandez under the active negligence
cause of action, and that Gonzalez-Flores created a dangerous
situation. The trial court granted Gonzalez-Flores's
motion for summary judgment without specifying the grounds,
and Hernandez appealed.
Standard of review and applicable law
review the trial court's grant of summary judgment de
novo. See, e.g., Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider
all of the summary judgment evidence in the light most
favorable to the nonmovant, crediting evidence favorable to
the nonmovant if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). When a party moves for summary
judgment on both traditional and no-evidence grounds, we
address the no-evidence grounds first. See Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
trial court ...