Court of Appeals of Texas, Seventh District, Amarillo
ANDREW BROWN AND SARA BROWN, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF KEARA BROWN, DECEASED, APPELLANTS
TRADITIONS OIL & GAS, LLC; TRADITIONS OIL & GAS SERVICES, LLC; AND CHISUM RANCHES, LTD., APPELLEES
Appeal from the 84th District Court Hutchinson County, Texas
Trial Court No. 42, 089, Honorable Curt Brancheau, Presiding
CAMPBELL and PIRTLE and PARKER, JJ.
C. PARKER, JUSTICE
Andrew and Sara Brown, appeal the granting of summary
judgment in favor of appellees, Traditions Oil & Gas,
LLC, Traditions Oil & Gas Services, LLC, and Chisum
Ranches, Ltd. (collectively, "Traditions"), as to
the Browns' premises liability claim. We affirm the trial
court's grant of summary judgment.
March of 2015, eleven-year-old Keara Brown spent the weekend
at the home of her friends, Shelby and Adeline McLemore.
Keara's mother, Sara Brown, was comfortable with the
three girls walking around the neighborhood unsupervised
because they were old enough to appreciate dangers and avoid
doing things that would get themselves hurt. While walking
around, the girls saw a pump jack approximately 200 yards
behind the McLemore residence that was not visible from the
residence. Keara ran to the pump jack despite the McLemore
girls' protests. There were no barriers, fences, or
warning signs around or near the pump jack. Keara promptly
climbed up the pump jack to "ride" it. Shelby
yelled to Keara to get off the pump jack before she hurts
herself. Despite these warnings, when Keara climbed to the
top, she got caught between moving parts of the pump jack
which inflicted fatal injuries.
for Traditions had never seen children playing near the pump
jack or at the houses near the pump. Further, they had never
heard of children playing near the pump either. In fact, the
only evidence of children playing on the pump jack is the
Browns filed suit against Traditions alleging claims for
negligence, attractive nuisance, premises liability, and
gross negligence. Traditions answered and, subsequently,
filed traditional and no-evidence summary judgment motions.
After considering the motions, summary judgment evidence, and
arguments of counsel, the trial court granted Traditions'
motions for summary judgment. The Browns filed a motion for
new trial, which was overruled by operation of law. The
Browns then timely filed notice of appeal.
their appeal, the Browns generally contend that the trial
court erred in granting Traditions' summary judgment
motions. Specifically, they contend that the evidence raises
a material issue of fact regarding whether (1) Traditions
knew or should have known that children were likely to
trespass in the area of the pump jack, and (2) Keara, because
of her youth, did not realize the risk involved in meddling
with the pump jack.
appellate court reviews a summary judgment ruling de novo.
Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). The movant for summary judgment
has the burden to show there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). Reviewing courts must take
as true all evidence favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts in favor
of the nonmovant. Provident Life & Accident Ins.
Co., 128 S.W.3d at 215. When a trial court's order
does not specify the grounds relied on to grant summary
judgment,  we will affirm if any of the summary
judgment grounds are meritorious. Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995).
movant for traditional summary judgment is entitled to
summary judgment only if it conclusively negates at least one
element of each of the plaintiff's causes of action, or
conclusively establishes each element of an affirmative
defense." Yowell v. Granite Operating Co., 557
S.W.3d 794, 799 (Tex. App.-Amarillo 2018, pet. granted). A
no-evidence summary judgment is reviewed using the legal
sufficiency standard employed in a directed verdict case.
Id. at 799-800. In reviewing a no-evidence summary
judgment, our job is to determine whether the nonmovant has
produced any evidence of probative force to raise a genuine
issue of fact regarding a material question in the case.
Id. at 800.
trespasser is a person who enters the property of another
without any legal right or invitation, express or implied.
State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006). A
premises owner owes a duty not to injure a trespasser
willfully, wantonly, or through gross negligence. Tex.
Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.
1997). But the duty owed to an invitee requires the premises
owner to use ordinary care to reduce or eliminate
unreasonable risks of harm caused by a condition of the
premises of which the owner is or reasonably should be aware.
Id. A bare trespasser is impliedly invited onto the
premises if ...