Cristina Coronado v. A.W. Wright Family Limited Partnership D/B/A Eagle Dancer Ranch

• Court: Court of Appeals of Texas
• Decided: December 5, 2024
• Docket: 13-23-00299-CV
• Status: Published

Opinion

NUMBER 13-23-00299-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CRISTINA CORONADO, Appellant,

v.

A.W. WRIGHT FAMILY LIMITED PARTNERSHIP D/B/A EAGLE DANCER RANCH, Appellee.

ON APPEAL FROM THE 451ST DISTRICT COURT OF KENDALL COUNTY, TEXAS

MEMORANDUM OPINION Before Justices Longoria, Tijerina, and Peña Memorandum Opinion by Justice Tijerina

Appellant Cristina Coronado sued appellee A.W. Wright Family Limited

Partnership d/b/a Eagle Dancer Ranch (EDR) for injuries suffered in a slip and fall

accident. By three issues, Coronado argues that the trial court erred in granting summary

judgment in favor of EDR in a premise liability suit because: (1) EDR knew or should have known of concealed defects; (2) EDR retained the requisite control over the grounds; and

(3) EDR created a dangerous condition. We affirm.

I. BACKGROUND1

On September 29, 2018, Coronado attended a wedding at EDR’s ranch. While at

the wedding, she was injured after falling on steps leading to an outdoor pit area.

Coronado sued EDR, alleging she “was an invitee on [the ranch] for a wedding” and that

EDR “owed a duty to use ordinary care in making its premises reasonably safe/or

providing adequate warning concerning any dangerous conditions existing on said

premises.” Specifically, she alleged that she “fell on a set of inconspicuous steps in an

outdoor ‘pit’ area on [EDR’s] premises. The area around the steps, and the steps

themselves did not have a handrail for safe egress and ingress into the pit, warning signs,

or adequate lighting.” Coronado claimed she “suffered severe personal injuries including,

but not limited to, serious sprains and contusions to her legs and permanent scarring.”

Below is a photograph of the alleged “inconspicuous steps” at issue.

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 EDR filed a traditional motion for summary judgment, asserting the property was

subject to a commercial lease, that it was a lessor and had no duty to Coronado because

it did not have control over the premises and that Juris Properties, a third party,

maintained the premises and was responsible for all repairs and maintenance. EDR

further stated that the “exterior steps were not unreasonably dangerous, but instead open

and obvious.” EDR claimed that Coronado confirmed she looked down at the steps and

held on to her husband as she began her descent. EDR attached the following evidence:

(1) affidavit of Allen W. Wright, manager of Juris Properties; (2) affidavit of Harold McCall,

president of Juris Properties; (3) the commercial lease; (4) photographs of the steps; (5)

Coronado’s deposition testimony; and (6) an affidavit from its expert Eric Benstock, a

mechanical engineer.

Coronado responded, asserting that as a landlord, EDR had a duty to her because

it knew or should have known of the concealed defect; there are “genuine issues of

material fact as to whether [EDR] retained control of the property” on the date of the

3 incident; and EDR “created the dangerous condition.” EDR replied asserting the evidence

was undisputed that Coronado saw the steps, the lighting was sufficient, she was aware

of the composition of the steps, and it was open and obvious that the steps did not have

a handrail.

The trial court granted EDR’s motion for summary judgment on February 23, 2023.

Coronado filed a motion for findings of fact and conclusions of law, a motion for new trial,

and a motion for leave to amend her petition. The trial court denied the motions.2 This

appeal followed.

II. SUMMARY JUDGMENT

First, Coronado argues that EDR “knew or should have known of the concealed

defect when Juris Properties took over control” of the premises. By her second issue,

Coronado asserts she raised a genuine issue of fact regarding whether EDR retained

control of the premises. By her third issue, Coronado argues that EDR owed her a duty

because it created a dangerous condition.

A. Standard of Review

“We review a trial court’s summary judgment de novo.” KMS Retail Rowlett, LP v.

City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). We consider the evidence in the light

most favorable to the nonmovant, indulging every reasonable inference in favor of the

nonmovant and resolving any doubts against the movant. Id. A party moving for traditional

summary judgment bears the burden of proving that there is no genuine issue of material

2 See Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (providing that “findings of fact

and conclusions of law have no place in a summary judgment proceeding”).

4 fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nassar

v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). Evidence is conclusive

only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005).

“If a movant initially establishes a right to summary judgment on the issues

expressly presented in the motion, then the burden shifts to the nonmovant to present to

the trial court any issues or evidence that would preclude summary judgment.” Bryant v.

Baker, 580 S.W.3d 408, 412 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (citing

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). The

nonmovant can meet its burden if its evidence is more than a scintilla, i.e., if it “rises to a

level that would enable reasonable and fair-minded people to differ in their conclusions.”

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

B. Applicable Law

“In a premises liability case, the duty owed to the plaintiff depends on the status of

the plaintiff at the time of the incident.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675

(Tex. 2004). Here, it is undisputed that Coronado’s status was that of an invitee.

Strandberg v. Spectrum Off. Bldg., 293 S.W.3d 736, 739 (Tex. App.—San Antonio 2009,

no pet.) (“An invitee is one who enters on another’s land with the owner’s knowledge and

for the mutual benefit of both.”) (internal quotations omitted). “A lessor generally has no

duty to tenants or their invitees for dangerous conditions on the leased premises.”

Johnson Cnty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Jensen

5 v. Sw. Rodeo, L.P., 350 S.W.3d 755, 757 (Tex. App.—Dallas 2011, no pet.) (“It has long

been recognized that a lessor generally owes no duty to a tenant or its invitees for

dangerous conditions on the leased premises.”). There are three exceptions to this rule:

(1) “a lessor who makes repairs may be liable for injuries resulting from the lessor’s

negligence in making the repairs” (negligent-repair exception) 3 ; (2) “a lessor who

conceals defects on the leased premises of which the lessor is aware” (concealed defect

exception); and (3) a lessor who retains control of a portion of the premises for injuries

caused by a defect on the portion of the premises (control of defect exception). Posse,

926 S.W.2d at 285; City of Irving v. Seppy, 301 S.W.3d 435, 446 (Tex. App.—Dallas 2009,

no pet.) (providing that the three exceptions are: (1) the lessor’s negligent repairs, (2)

concealed defects of which the lessor was aware, and (3) a defect which remained under

the lessor’s control); Kukis v. Newman, 123 S.W.3d 636, 639 (Tex. App.—Houston [14th

Dist.] 2003, no pet.) (recognizing the three exceptions to the general no-duty rule); see

also RESTATEMENT (SECOND) OF TORTS §§ 357 (regarding negligent repairs), 358

(regarding concealed defects); 360 (regarding portion of premises remaining in lessor’s

control). This rule stems from the notion that a lessor relinquishes possession of the

premises to the lessee. Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 590 (Tex.

App.—Houston [1st Dist.] 2005, no pet.).

C. Discussion

EDR must establish that there is no genuine issue of material fact, and it is entitled

to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Citing to the general rule that a

3 We note that Coronado does not recognize or address the negligent repair exception.

6 lessor has no duty to tenants or their invitees for dangerous conditions on a leased

premises, EDR asserts the trial court properly granted summary judgment in this case

because none of the exceptions to the general rule applies. Here, the summary judgment

evidence provided that EDR was a lessor and leased the premises to Juris Properties.

See id.; Kukis, 123 S.W.3d at 639 (“A lessor generally has no duty to tenants or their

invitees for dangerous conditions on the leased premises.”). Coronado does not dispute

this. Thus, the general rule that landlords have no duty to their tenants or invitees applies,

and Coronado must raise a fact issue regarding one of the three exceptions. See Posse,

926 S.W.2d at 285.

1. Negligent-Repair Exception

In the trial court, EDR asserted that as a lessor, it did not make any repairs to the

steps. It attached its commercial lease agreement, which stated that the lessee, Juris

Properties, shall be responsible for the repairs and maintenance. The lease further stated

that EDR had “no duty or obligation to inspect, maintain or repair the premises during the

term of the lease, such being the sole duty of the Lessee as part of the consideration of

this lease.” The lease set out that the “Lessee agrees to comply with all laws, ordinances,

rules and order of federal, state, and local governments.” In his affidavit, McCall confirmed

that any modifications to structures, repairs, and maintenance are performed by Juris

Properties. He clarified that EDR was “free[d] . . . from such obligations.” Wright made

similar statements in his affidavit: “Juris Properties (as Lessee) shall, at its own expense

and risk, be solely responsible for inspecting and maintaining [the premises] . . . making

all repairs and replacements necessary to keep the premises and improvements in a safe

7 serviceable condition.” Therefore, the evidence shows that EDR was not responsible for

repairs on the property, and there is no evidence that it made any repairs on the steps,

negligent or otherwise. See City of Irving, 301 S.W.3d at 446 (“[I]n a lease arrangement,

the lessor transfers possession and control of the leased premises to the tenant.”).

In her response to EDR’s motion for summary judgment, Coronado did not address

the negligent-repair exception. That is, Coronado did not assert that EDR owed her a duty

because it made a repair and her injuries resulted from EDR’s negligence in making such

repair. Additionally, Coronado did not provide any evidence of the same. See id. Because

Coronado failed to address this exception entirely, we conclude she failed to raise a fact

issue regarding the negligent-repair exception. See TEX. R. CIV. P. 166a(c). We overrule

her first issue.

2. Concealed-Defect Exception

In its motion for summary judgment, EDR asserted that the steps “were not

unreasonably dangerous, but instead open and obvious to” Coronado. In her response to

EDR’s motion for summary judgment, Coronado asserted that any “daytime inspection of

the premises . . . would have revealed an unreasonable risk of harm” because “you can

visibly see that the stairs, as constructed, are visibly uneven and contain many cracks

and divots.” She claimed that “[a]ny inspection by an employee or representative of [EDR]

would have shown this” and that EDR owed her a duty “to not allow obvious, open and

even grossly negligent defects on property” that it owns.

In the trial court, Coronado asserted that the defect here was visible, obvious, and

open and did not claim that EDR had concealed a defect. See Austin v. Kroger Tex., L.P.,

8 465 S.W.3d 193, 201 (Tex. 2015) (“[I]n most cases, a landowner owes no duty to protect

an invitee against a dangerous condition that is open and obvious or known to the

invitee.”). On appeal, Coronado maintains that “[a]ny viewer” would have seen the alleged

defect; that “[a]lmost any visit at all would have revealed” the stairs, which were “visibly

uneven” and “apparent on the face”; and that EDR had a duty to warn the public of this

“obvious danger.” Rather than provide evidence that EDR concealed a defect on the

premises it allegedly had control over, Coronado stated that the alleged defect was open,

obvious, apparent on the face, and an obvious danger. See id. (“[T]he Court has typically

characterized the landowner’s duty as a duty to make safe or warn of unreasonably

dangerous conditions that are not open and obvious or otherwise known to the invitee.”

(emphasis added)). Additionally, the summary judgment evidence provided that

Coronado testified that she viewed pictures of the venue online prior to attending the

wedding. She stated that before she walked down the steps, she saw that the steps were

made of natural rock, knew that the steps were uneven, and she clarified that she looked

down before starting her descent. Because the evidence provided that the steps were

open and obvious, we conclude Coronado failed to raise a fact issue as to the concealed

defect exception. See Austin, 465 S.W.3d at 201; Posse, 926 S.W.2d at 285. We overrule

her second issue.

3. Control-of-Defect Exception

Lastly, Coronado asserted that EDR retained control of the premises. Even

assuming it is true that EDR retained control, we nonetheless conclude that Coronado

failed to raise a fact issue that the steps were a dangerous condition. See City of Irving,

9 301 S.W.3d at 446. In his affidavit, Benstock testified that he conducted an examination

of the steps at issue. He stated that “the steps and surrounding area, inclusive of the solar

powered perimeter lights,” were in the same condition as they were at the time of

Coronado’s fall. Benstock opined: “While there were some variations in the smoothness

of the top of each of the three steps due to the natural stone construction . . . the steps

[were] level, solid, and constructed in accordance with the I[nternational] B[uilding]

C[ode].”4 Benstock stated that the building code required a railing or guard along open-

sided stairs “that are located more than 30 inches . . . measured vertically to the floor or

grade below at any point within 36 inches . . . horizontally to the edge of the open side.”

Because these steps were between eighteen inches to nineteen inches from the pit to the

upper landing and thus less than the 30-inch maximum allowable under the code,

Benstock asserted that no installation of a guard or rail was required. He further stated,

“[T]he condition of the steps was readily visible and adequately illuminated,” in “excellent

condition with no visible defects or trip hazards,” were near “solar powered lights and

other lights proximate to the pit area that made the steps visible,” and complied with the

applicable building standards. See Bryant, 580 S.W.3d at 412; cf Grieve v. Red Roof Inns,

Inc., No. 13-99-660-CV, 2001 WL 1003312, at *10 (Tex. App.—Corpus Christi–Edinburg

Aug. 31, 2001, pet. denied) (mem. op.) (“[E]vidence that a step did not comply with the

building code can amount to some evidence that the property owner should have been

alerted to a potentially dangerous condition on his premises.”).

4 Benstock explained that the dimensions of the risers’ height and tread depth between transition

steps fell within the minimum and maximum range of height to comply with the code.

10 To succeed, Coronado had to present more than a scintilla of evidence that the

steps were a dangerous condition. See Ford Motor Co. 135 S.W.3d at 601. Coronado did

not refute Benstock’s expert testimony. Instead, Coronado merely asserted that her

premises expert, Jason English, reviewed the facts in this case and “[h]is opinions, to be

summarized further via report and deposition testimony, make it abundantly clear that the

stairway was a dangerous condition” and “in clear violation” of the building code.

(Emphasis added.) This alone is insufficient to avoid summary judgment. See id.

Coronado did not provide English’s report or deposition testimony—his deposition has

yet to occur, and Coronado’s general assertion does not “rise[] to a level that would enable

reasonable and fair-minded people to differ.” Id.; Dietz v. Hill Country Rests., Inc., 398

S.W.3d 761, 767 (Tex. App.—San Antonio 2011, no pet.) (“Standing alone, Dietz’s

testimony [regarding the circumstances of her fall] does no more than create a mere

surmise or suspicion of an unreasonable risk of harm.”). As a result, the trial court properly

granted EDR’s motion for summary judgment on the control-of-defect exception. See id.

We overrule Coronado’s third issue.

III. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA Justice

Delivered and filed on the 5th day of December, 2024.