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Brown v. Traditions Oil & Gas, LLC

Court of Appeals of Texas, Seventh District, Amarillo

September 13, 2019


          On Appeal from the 84th District Court Hutchinson County, Texas Trial Court No. 42, 089, Honorable Curt Brancheau, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.



         Appellants, 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.

         In 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.

         Employees 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 present incident.

         The Browns filed suit against Traditions alleging claims for negligence, attractive nuisance, premises liability, and gross negligence.[1] 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.

         By 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.

         Standard of Review

         An 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, [2] 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).

         "A 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.

         Applicable Law

         A 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 ...

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