Opinion issued June 2, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00706-CV ——————————— MARIA MACIAS-GARCIA, Appellant V. MOODY GARDENS, INC., Appellee
On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Case No. CV-0091873
MEMORANDUM OPINION
Appellant, Maria Macias-Garcia, challenges the trial court’s rendition of
summary judgment in favor of appellee, Moody Gardens, Inc. (“Moody Gardens”),
in her suit against Moody Gardens for negligence. In her sole issue, Macias-Garcia contends that the trial court erred in granting summary judgment in favor of Moody
Gardens.
We affirm.
Background
In her petition, Macias-Garcia alleged that on March 12, 2022, she was an
invitee at an aquarium facility owned, operated, managed, and maintained by Moody
Gardens in Galveston, Texas. According to Macias-Garcia, she “slipped and fell
due to a premises condition that posed an unreasonable risk of harm to [her] and
others.” As a result of her fall, Macias-Garcia suffered a right ankle fracture, which
required surgical intervention and resulted in “a right leg blood clot.” Macias-Garcia
alleged that Moody Gardens “had actual knowledge of the danger posed by the
premises condition,” but she “had no knowledge of the unreasonably dangerous
condition before her injury.”
Macias-Garcia brought a claim for negligence against Moody Gardens,
asserting that Moody Gardens was negligent:
• “[i]n failing to maintain the premises in question in a reasonably safe condition and free of hazards to [Macias-Garcia] and other invitees entering the premises”;
• “[i]n failing to correct the unreasonably dangerous condition”;
• “[i]n failing to adequately warn invitees, including [Macias-Garcia], of the unreasonably dangerous condition”;
2 • “[i]n failing to properly train its agents, servants, and/or employees regarding the proper manner in which to make the premises reasonably safe”; and
• “[i]n failing to implement proper policies, rules, and/or procedures to make its premises reasonably safe.”
According to Macias-Garcia, the negligence of Moody Gardens proximately caused
her injuries. Macias-Garcia sought damages.
Moody Gardens answered, generally denying the allegations in
Macias-Garcia’s petition and asserting, among other things, that the premises
condition about which Macias-Garcia complained was open, obvious, and known to
her, the premises condition did not pose an unreasonable risk of harm, it had
provided adequate warnings as to the premises condition, and it had fulfilled any
duty owed to Macias-Garcia in connection with the condition.
Moody Gardens then moved for summary judgment on Macias-Garcia’s
negligence claim against it, asserting that it was entitled to judgment as a matter of
law. According to Moody Gardens, although not alleged by Macias-Garcia in her
petition, it was undisputed that she had fallen “at the simulated sandbar at the
mangrove touch tank exhibit located in the Aquarium Pyramid” at the Moody
Garden’s property. The “mangrove tank” was “a touch tank wherein guests c[ould]
touch rays and small sharks.” (Internal quotations omitted.) The “simulated sandbar
serve[d] as steps enabling guests [of the aquarium] to reach into the touch tank
3 should they choose to do so”; however, guests could “also access the touch tank
without ascending the sandbar.”
Moody Gardens explained that “[g]uests of the Aquarium Pyramid enter[ed]
the room where the touch tank [was] located from one direction,” and “[f]acing the
[guests] as they proceed[ed] into the room [was] a square blue column.” “A rope
running in front of the simulated sandbar funnel[ed] [guests] to the right,” and “[a]s
guests continue[d] into the room, they walk[ed] by the column and the first two (of
three) warning signs.” Guests could see the warning signs as they approached the
square blue column, and the signs stated: “CAUTION WATCH YOUR STEP.”
The signs also “depict[ed] an individual falling.”
According to Moody Gardens, the rope then “guide[d] guests to the right
where they [were] to wash their hands before proceeding to the touch tank.” “As
guests finish[ed] washing their hands and turn[ed] towards the touch tank and the
simulated sandbar, they then face[d] a third identical sign mounted to a third side of
the [square] blue column and bearing the same warning and graphic.” “The warning
sign [was] in immediate proximity to the simulated sandbar where [Macias-Garcia]
fell.”
Moody Gardens stated that “all three warning signs (facing in three different
directions as one approache[d] the touch tank) were present at the time [that]
Macias-Garcia fell,” and Macias-Garcia, in her deposition, did not “dispute that the
4 warning signs were present at the time she fell.” Further, Macias-Garcia “did not
fall while ascending the simulated sandbar.” Instead, Macias-Garcia had already
“chosen to and then ascended the sandbar,” “reached into the touch tank for an
unknown period of time while standing on top of the simulated sandbar,” and “turned
around to walk away and exit the area.” She fell while walking away from the
simulated sandbar. Macias-Garcia asserted that she had fallen because “the surface
was uneven,” but she also did not know what caused her fall.
Moody Gardens, in its motion, argued that it was entitled to judgment as a
matter of law on Macias-Garcia’s negligence claim because it did not owe her a duty
as the condition about which she complained was open and obvious, and
Macias-Garcia actually knew of the condition, i.e., the uneven surface, before she
fell. Further, even if the condition was not open and obvious or known by
Macias-Garcia, Moody Gardens discharged any duty owed to her by warning her of
the condition that caused her fall.1
In response to Moody Gardens’ summary-judgment motion, Macias-Garcia
argued that Moody Gardens did not establish that it was entitled to judgment as a
matter of law on her negligence claim because it had not “conclusively established
1 Moody Gardens attached to its summary-judgment motion, among other exhibits: the affidavit of Kyle A. Pacini, its Safety/Risk Manager; an incident/accident report related to Macias-Garcia’s fall; photographs of the “mangrove touch tank area in the Aquarium [Pyramid]”; and excerpts from Macias-Garcia’s deposition testimony.
5 that the condition[] that caused [Macias-Garcia’s] fall [was] ‘open and obvious’ or
known to [Macias-Garcia] before the fall” and “there [was] an obvious fact issue
regarding the adequacy of [Moody Gardens’] weak warning that [needed to] be
resolved by the [j]ury.”
According to Marcias-Garcia, “the uneven, wet and dimly lit condition of the
simulated sandbar” was not open and obvious or known to her before she fell
because March 12, 2022 was the first time that she had ever visited the “mangrove
exhibit.” Further, Macias-Garcia “was unaware of the location and extent of [the]
unmarked elevation changes as she traversed the simulated sandbar because [she]
was looking at the mangrove exhibit and not staring at the floor.” (Emphasis
omitted.) She did not know that the “simulated sandbar was constantly wet because
[guests] who visited the exhibit before [her] would customarily and routinely place
their hands into the water in the exhibit and shake off their wet hands onto the
simulated sandbar floor surface prior to reaching the washing and drying station
located away from the simulated sandbar.” According to Macias-Garcia, there were
no “verbal warnings” about the elevation changes and the presence of water on the
floor provided to her. (Emphasis omitted.)
Macias-Garcia also asserted that she never saw “any warning signs regarding
the uneven, wet and dimly lit condition of the simulated sandbar before she fall
because her view of the inadequate signage was obstructed due to the big crowd of
6 people in the exhibit during a very busy [s]pring [b]reak weekend.” “The only
locations of the three . . . vague, ‘watch your step’ warning signs which ma[de] no
reference at all to the slippery and constantly wet surface of the simulated sandbar
were located on three sides of a column that [was] outside and not within the
perimeter of the simulated sandbar.” Thus, the adequacy of the warning signs was
a question for the jury to resolve.2
In its reply to Macias-Garcia’s response, Moody Gardens explained that,
despite her summary-judgment response, in her deposition testimony,
Macias-Garcia stated that she did not know whether there was water on the simulated
sandbar at the time of her fall, and she had not alleged that inadequate lighting had
caused her fall.
Further, although Macias-Garcia asserted in her response that she did not have
knowledge of the condition causing her fall, before her fall, she had “chose[n] to
ascend the simulated sandbar,” “stood on it for an unknown period of time,” and
only fell “while exiting the very attraction that she had been standing on.” Thus, her
“claim that she was not aware of the uneven surface c[ould not] be true.” And
2 Macias-Garcia attached to her summary-judgment response, the following exhibits: her affidavit; certain photographs; excerpts from her deposition testimony; excerpts from Pacini’s deposition testimony; and an incident/accident report related to the fall of another person.
7 Moody Gardens, as the owner of the premises, was not required to keep invitees safe
from conditions that were open and obvious and known.
Finally, Moody Gardens asserted that Macias-Garcia’s claim that she did not
see the warning signs did not mean that the signs were not present and that Moody
Gardens’ duty had not been satisfied.
The trial court granted Moody Gardens’ summary-judgment motion and
ordered that Macias-Garcia take nothing on her negligence claim against Moody
Standard of Review
We review a trial court’s decision to grant summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our
review, we take as true all evidence favorable to the non-movant, and we indulge
every reasonable inference and resolve any doubts in the non-movant’s favor.
Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. When, as here,
the trial court does not specify the grounds on which it granted summary judgment,
we must affirm if any of the summary-judgment grounds are meritorious. See
Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.]
2005, pet. denied).
8 To prevail on a matter-of-law summary-judgment motion, the movant has the
burden of establishing that it is entitled to judgment as a matter of law and there is
no genuine issue of material fact. See TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). When the defendant moves for a matter-of-law
summary judgment, it must either: (1) disprove at least one essential element of the
plaintiff’s cause of action, or (2) plead and conclusively establish each essential
element of an affirmative defense, thereby defeating the plaintiff’s cause of action.
See Cathey, 900 S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant
to raise a genuine issue of material fact precluding summary judgment. See Siegler,
899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691
(Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine
issue of fact if reasonable and fair-minded fact finders could differ in their
conclusions in light of all of the summary-judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Summary Judgment
In her sole issue, Macias-Garcia argues that the trial court erred in granting
Moody Gardens’ summary-judgment motion because there were “fact questions as
to whether (1) the area was unreasonably dangerous, (2) [Macias-Garcia] saw the
9 warning signs posted by Moody Gardens, [and] (3) the warning[s] posted by Moody
Gardens were sufficient to satisfy its duty to make the premises safe.”
Premises liability is not strict liability. See Wal–Mart Stores, Inc. v. Reece,
81 S.W.3d 812, 816 (Tex. 2002). And a premises owner “is not an insurer of [a]
visitor’s safety.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)
(internal quotations omitted); see also Kroger Co. v. Elwood, 197 S.W.3d 793, 795
(Tex. 2006). Instead, a premises owner’s duty to an invitee3 is to exercise reasonable
care to make the premises safe. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202
(Tex. 2015). A premises owner can satisfy this duty by eliminating an unreasonably
dangerous condition or mitigating the condition so that it is no longer unreasonably
dangerous. Id. A premises owner can also satisfy its duty, in most cases, by
providing an adequate warning of the danger. Id.
When an invitee is aware of a dangerous premises condition—whether
because the danger is obvious or because the premises owner provided an adequate
warning—the condition will, in most cases, no longer pose an unreasonable risk in
that the law presumes an invitee will take reasonable measures to protect against
3 The parties do not dispute Macias-Garcia’s status as an invitee. See Dabney v. Wexler–McCoy, Inc., 953 S.W.2d 533, 536 (Tex. App.—Texarkana 1997, pet. denied) (“An ‘invitee’ is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage.”).
10 known risks. Id. at 203; Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476,
481 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Combined, these concepts present the general rule regarding a premises
owner’s duty to an invitee, which is “to make safe or warn against any concealed,
unreasonably dangerous conditions of which the [premises] []owner is, or
reasonably should be, aware but the invitee is not.” Austin, 465 S.W.3d at 203.
A dangerous condition that an invitee reasonably should be aware of is one
that is open and obvious. See Dewberry Farm, LLC v. Elias as Next Friend of N.E.,
No. 01-18-01058-CV, 2020 WL 6589331, at *3 (Tex. App.—Houston [1st Dist.]
Sept. 1, 2020, pet. dism’d) (mem. op.). Defects that are open and obvious or
otherwise known to an invitee are outside the premises owner’s general duty to warn.
Austin, 465 S.W.3d at 203–04; see also 4Front Engineered Sols., Inc. v. Rosales,
505 S.W.3d 905, 912 (Tex. 2016) (no duty when premises condition is open and
obvious); Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (no
duty when invitee is aware of hazard).
Duty is a question of law. Allen Keller Co. v. Foreman, 343 S.W.3d 420, 425
(Tex. 2011); Nicholson v. Smith, 986 S.W.2d 54, 59 (Tex. App.—San Antonio 1999,
no pet.). Relatedly, whether a defect qualifies as “open and obvious,” such that there
is no duty to warn, presents a question of law for the court. Coffee v. F. W.
Woolworth Co., 536 S.W.2d 539, 541 (Tex. 1976) (stating that “question of whether
11 or not a premises defect is open and obvious is for the court to decide as a matter of
law”); Tex. Dep’t of Transp. v. Ramirez, 566 S.W.3d 18, 25 (Tex. App.—San
Antonio 2018, pet. denied).
These two no-duty circumstances—when a hazard is known to the invitee and
when a hazard is open and obvious—are two sides of the same coin: one focused on
the subjective knowledge of the invitee and the other on what would be reasonably
observable to a person exercising ordinary care under an objective standard. Culotta
v. DoubleTree Hotels LLC, No. 01-18-00267-CV, 2019 WL 2588103, at *3 (Tex.
App.—Houston [1st Dist.] June 25, 2019, pet. denied) (mem. op.).
Here, the condition Macias-Garcia complains about was the simulated
sandbar at the mangrove touch tank exhibit. Photographs of the simulated sandbar,
which were attached to Moody Gardens’ summary-judgment motion, showed that
the simulated sandbar was clearly a lighter color and a different texture from the
regular flooring in the mangrove touch tank exhibit area, such that it stood out from
the rest of the room. The differing texture also made the change in elevation of the
simulated sandbar perceivable. Further, the simulated sandbar area was clearly
designated and blocked off by a rope barrier.4 See e.g., Born v. Fielder, No.
4 The photograph of the simulated sandbar attached to Macias-Garcia’s response shows the same circumstances. Pacini, Moody Gardens’ Safety/Risk Manager, testified that the photographs attached to Moody Gardens’ summary-judgment motion accurately depict the mangrove touch exhibit area on March 12, 2022 at the time Macias-Garcia fell.
12 05-25-00239-CV, 2026 WL 815111, at *3 (Tex. App.—Dallas Mar. 24, 2026, no
pet.) (mem. op.) (reviewing photographs of condition to conclude it was open and
obvious); Smith v. Ranger Excavating, L.P., No. 03-24-00754-CV, 2025 WL
3165466, at *6 (Tex. App.—Austin Nov. 13, 2025, no pet.) (mem. op.)
(“Objectively, a reasonably prudent person present at the job site in similar
circumstances . . . would have seen the condition of the dirt-and-rock ramp that was
not concealed or obscured from view and perceived the danger of slipping and falling
while walking on it.”).
A danger is open and obvious if a reasonably prudent invitee would have
known and appreciated the nature and extent of the danger under similar
circumstances. Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788
(Tex. 2021). In this case, a reasonably prudent person present at the mangrove touch
tank exhibit would have perceived the danger of slipping and falling on the simulated
sandbar. See, e.g., Medallion Stores, Inc. v. Eidt, 405 S.W.2d 417, 421–22 (Tex.
Civ. App.—Texarkana 1966, writ ref’d n.r.e.) (platform on floor was open and
obvious condition where it was “in plain sight” and “clearly perceptible” and
defendant “did not conceal the display platform”); see also Dintino v. Hanger
Prosthetics & Orthotics E., Inc., 210 N.E.3d 641, 650 (Ohio Ct. App. 2023) (“[W]hat
is in evidence shows the nature of the doorway and the open and visible nature of
the different flooring materials and [that] the metal threshold w[as] readily visible.”);
13 cf. Coffee, 536 S.W.2d at 541 (concluding platform not open and obvious condition
where dispute in record as to “how much the color of the platform contrasted with
the color of the [regular] floor” and witnesses testified “color of the platform blended
in with that of the floor”). As such, we conclude that Moody Gardens had no duty,
as a matter of law, to Macias-Garcia to warn against the condition about which she
complains.
Additionally, we note that Macias-Garcia, in her briefing, fails to argue that
the simulated sandbar condition was not an open and obvious condition. To obtain
reversal of a summary-judgment ruling on appeal, an appellant must challenge all
possible grounds on which a summary judgment could have been granted, whether
properly or improperly. See McCoy v. Rogers, 240 S.W.3d 267, 271 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied); see also Vawter v. Garvey, 786 S.W.2d 263,
264 (Tex. 1990) (proscribing reversal of summary judgment without properly
assigned error). If an appellant fails to challenge all grounds on which the judgment
may have been granted, the appellate court must uphold the summary judgment. See
Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Jarvis v. Rocanville
Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see also Britton
v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]
2002, no pet.) (“[I]f an independent ground fully supports the complained-of ruling
or judgment, but the appellant assigns no error to that independent ground, then
14 (1) we must accept the validity of that unchallenged independent ground . . . and
thus (2) any error in the grounds challenged on appeal is harmless because the
unchallenged independent ground fully supports the complained-of ruling or
judgment.”).
Moody Gardens moved for summary judgment arguing, among other things,
that it was entitled to judgment as a matter of law on Macias-Garcia’s negligence
claim against it because it did not owe her a duty as the condition about which she
complained was open and obvious. The trial court’s granting of Moody Gardens’
summary-judgment motion could have been based on a finding that the condition
about which Macias-Garcia complained was open and obvious and thus Moody
Gardens did not owe her, an invitee, any duty. Because, on appeal, Macias-Garcia
failed to challenge this independent ground supporting the trial court’s ruling, we
must uphold the trial court’s summary-judgment ruling. See, e.g., Andrews v.
Hayman, No. 01-23-00038-CV, 2024 WL 234413, at *5–6 (Tex. App.—Houston
[1st Dist.] Jan. 23, 2024, no pet.) (mem. op.); see also Heritage Gulf Coast Props.,
Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 653 (Tex. App.—Houston
[14th Dist.] 2013, no pet).
Based on the foregoing, we hold that the trial court did not err in granting
Moody Gardens summary judgment on Macias-Garcia’s negligence claim.
We overrule Macias-Garcia’s sole issue.
15 Conclusion
We affirm the judgment of the trial court.
Kristin Guiney Justice
Panel consists of Chief Justice Adams and Justices Guerra and Guiney.