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Hernandez v. Gonzalez-Flores

Court of Appeals of Texas, Fourteenth District

July 27, 2017

RUTH HERNANDEZ, Appellant
v.
OZIEL GONZALEZ-FLORES, Appellee

         On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2014-53029A

          Panel consists of Justices Boyce, Busby, and Wise.

          OPINION

          J. Brett Busby, Justice

         Appellant 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.

         In her 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.

         Background

         Gonzalez-Flores 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.

         Guests 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.

         Gabino 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.

         At some 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 Hernandez.

         Hernandez 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.[1]

         Analysis

         I. Standard of review and applicable law

         We 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 ...


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