Preview
FILED
DALLAS COUNTY
3/14/2019 7:27 PM
FELICIA PITRE
DISTRICT CLERK
Veronica Vaughn
CAUSE NO. DC-16-07145
LEZLIE A. JOHNSTON, IN THE DISTRICT COURT OF
Plaintiffi
vs.
101“ JUDICIAL DISTRICT, TEXAS
LINCOLN PROPERTY COMPANY mmmmmmmmmmmmm
MANAGEMENT, INC., LINCOLN
PROPERTY COMPANY, LINCOLN
PROPERTY COMPANY COMMERCIAL,
INC., and LOCH ENERGY SQUARE, LP,
DALLAS COUNTY, TEXAS
Defendant.
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S
HYBRID MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE WILLIAMS:
COME NOW Lincoln Property Company Management, Inc., Lincoln Property Company,
Lincoln Property Company Commercial, Inc., and Loch Energy Square, LP, (hereinafter
collectively “Defendants”), Defendants in the above-entitled matter, and file this, their Reply t0
Plaintiff’s Response t0 Defendant’s Traditional and Hybrid Motions for Summary Judgment. As
Will be shown herein, Defendants has shown themselves entitled to summary judgment in this
matter under a variety 0f theories. In support thereof, Defendants would respectfully show the
Court the following:
I.
SUMMARY OF REPLY
This is a simple case; it’s a slip and fall case. Similarly, the issues presented by Defendants
in its Motion for Summary Judgment are simple. Did any Defendant have actual knowledge 0f the
dangerous condition? Which Defendant, if any, had control of the premises necessary for the
assertion of a premises liability claim? Has Defendant demonstrated that the snow and ice
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
accumulated naturally? Defendants have made a prima fascia showing 0f Why each is entitled to
summary judgment on the claims against it in this matter as Will be discussed herein. Plaintiff’s
Response is essentially the same Response it filed in response to Defendant Lincoln Property
Company Management, Inc.’s Traditional Motion for Summary Judgment. As a result, it does not
provide a basis to deny Defendants’ Hybrid Motion, for the following reasons:
1. Plaintiff’s Response tries to prove a case for “negligence” rather than show that any one 0f
the Defendants exercised control over the premises, had notice 0f the actual condition, or that the
snow and ice were not natural accumulations 0f wintry precipitation.
2. Plaintiff’s summary judgment evidence, When reviewed, does not say What Plaintiff claims
it does, and does not controvert Defendants’ Hybrid motion 0r its summary judgment evidence.
II.
PLAINTIFF’S EVIDENCE PROVES NOTHING BENEFICIAL TO PLAINTIFF
Plaintiff’s summary judgment evidence is not oriented to controverting Defendant’s
traditional motion on the defense 0f open and obvious. Instead, it is oriented t0 proving a
negligence claim When, in reality, Plaintiff has pleaded a premises liability claim. As Will be
shown herein, Plaintiff s evidence does not address the merits 0f Defendants’ Hybrid Motion.1
Plaintiff s Exhibit A is testimony from Plaintiff herself. In that testimony, she admits she
used the subject stairs she slipped on for at least two months prior t0 the alleged slip and fall.
(PE A, page 112, lines 17-22). She had a general awareness that snow had fallen in the days
before the alleged incident. (PE A, page 113, lines 14-24, page 225, lines 2-4). She knew there
was snow on the stairs 0n the day in question and it might be slippery, so she exercised caution
by walking slowly down the stairs and holding onto the handrail. (PE A, page 118, lines 17-25,
1
Defendants reserve the right to file objections to Plaintiff” s summary judgment evidence either in conjunction with
trial or any pre-trial proceedings, and its discussion herein is not a waiver of any obj ections any Defendant has to the
proffered evidence.
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
page 119, lines 1-8, page 121, lines 1-4). It was cold that day. (PE A, page 121, lines 20-22).
After successfully negotiating several 0f the stairs, she slipped and bumped her way down almost
the rest 0f the way down the stairs. (PE A, page 121, line 24-25, page 122, lines 1-4). She had
made it down the same set 0f snowy stairs the day before. (PE A, page 212, lines 5-17).
Because the snow and ice were noticed and not concealed, it is open and obvious as a
matter of law. See Lopez v. Ensign United States S. Drilling, LLC, 524 S.W.3d 836, 847-48
(Tex. App.—Houst0n [14th Dist. 2017, n0 pet). However, Plaintiff argues that, While she had
awareness of the snow 0n the ground, she was not aware 0f ice supposedly underneath the snow
and, therefore, she slipped on a concealed condition. Defendants disagree With this attempt t0
improperly hair-split the law. Texas law is clear that the hazard and/or condition, i.e.
slipperiness, unevenness of the floor, lack 0f handrails, is what premises liability is concerned
with, not what creates the hazard or condition. See Simpson v Orange Cly. Bldg. Materials, Ina,
2019 TeX. App. LEXIS 884, at *6 (TeX. App.—Beaum0nt Feb. 7, 2019, no pet. h.) ([T]he open and
obvious nature 0f the hazard... negates the landowner’s.... duty.) (emphasis supplied). That
said, assuming arguendo that Plaintiff’s position is correct, then Plaintiff has no evidence t0
show that any Defendant had any actual knowledge 0f the purportedly concealed ice, that any
Defendant created the purportedly concealed ice, or had reasonable opportunity to discover the
purportedly concealed ice. Plaintiff presents this Court With no evidence showing how long the
purportedly concealed ice had lurked underneath the snowfall Plaintiff concedes was Visible on
the steps. Therefore, Plaintiff has n0 evidence to show any Defendant had any knowledge 0f the
allegedly dangerous condition. Summary judgment on this issue is proper for all Defendants.
Plaintiffs Exhibit B is purported to be testimony 0f “Defendant’s” corporate
representative. It is not. As the first page of the exhibit shows, and as Ms. Trepagnier testified
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
0n page 44 of her deposition, she was testifying as the corporate representative of Defendant
Loch Energy Square, LP, not the other Defendants. (PE B, page 44, lines 14-17, page 45, lines 9-
11). Further, she testified over objection that it was her understanding Lincoln Property
Company Commercial, Inc. would have inspected the stairs, not any of the other Defendants.
Ms. Trepagnier’s testimony exculpates Defendants Loch Energy Square LP, Lincoln Property
Company, and Lincoln Property Company Commercial, Inc. However, t0 the extent Ms.
Trepagnier suggests it was the responsibility of Defendant Lincoln Property Company
Management, Inc.’s responsibility t0 inspect the subject stairs, that evidence does not create
culpability 0n that entity’s part. As discussed above, Plaintiff fails t0 present evidence of When
or if that Defendant performed inspections. Further, as Plaintiff’s own evidence Will show, any
snow and ice that had accumulated 0n the stairs was a natural accumulation, and therefore does
not constitute an unreasonably dangerous condition as a matter of Texas law. In sum. Ms.
Trepagnier’s testimony exonerates three Defendants and does not show any liability on the
remaining Defendant.
Plaintiff’ s Exhibit C is a record 0f weather conditions at DFW Airport for the month of
February, 2015 and March, 2015. The incident made the subject 0f this suit occurred 0n
Greenville Avenue in Dallas on March 6, 2015. Defendant fails t0 see how evidence 0f weather
in February, 2016 is relevant to the issue of whether a condition was open and obvious in March.
Further, the data for the 6th of March 0n 2015 shows a 10w temperature well below the freezing
point of water, at least at DFW Airport. There is n0 evidence that the area around the subject
building 0n Greenville Avenue in Dallas experienced the exact same weather conditions. A11
this exhibit proves is that it was cold in the Dallas area at the time 0f the alleged incident, Which
we already knew because of the snow 0n the stairs at the time of the incident. This exhibit does
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
not address Defendants’ defenses 0f lack 0f control and lack 0f notice and inferentially supports
Defendants’ assertion the wintry precipitation had naturally accumulated 0n the
Plaintiff’ s Exhibit D is an affidavit from Jim Sealy. This is clearly the evidence Plaintiff
believes makes their case. Close examination 0f the affidavit proves this belief t0 be false. This
Exhibit is the best example of the fact that Plaintiff is trying to prove a negligence case instead 0f
trying t0 defeat Defendants’ notice issue, control issue, and natural accumulation 0f ice and snow
issue. Mr. Sealy’s opinions in his affidavit do not address any 0f these issues. Instead, he seems
intent on interpreting the Dallas Building Code as making property owners strictly liable for any
accident that occurs 0n their property. This is contrary t0 Texas common law, Which holds that
premises owners are not the insurers of their invitees. Austin v. Kroger Tex, L.P., 465 SW.3d
193, 203 (Tex. 2015). Further, Mr. Sealy has n0 personal knowledge regarding the condition of
the subj ect stairs, especially Whether 0r not there was any ice 0n the stairs on the day in question.
More specifically, Mr. Sealy does not address which Defendant he believes had control 0f the
premises for the purposes of a premises liability claim. He does not present any evidences how
long the ice had allegedly been 0n the stairs. He does not present any evidence t0 show that the
accumulation 0f snow and ice 0n the stairs was anything but a natural accumulation. In sum, Mr.
Sealy’s opinions and statements, and indeed, his entire affidavit, are not relevant t0 the
dispositive issues presented t0 the Court in Defendants’ Hybrid Motion for Summary Judgment.
Plaintiff s Exhibit E is an affidavit from Jamie Wright, an employee 0f New. York Life at
the time 0f the incident. He took photographs that, while discussed in the affidavit, are not
attached t0 the affidavit. He states his belief that no preventative measures had been taken by
anyone in the area of the fall. He states that snow and ice are visible in the photos (emphasis
supplied). This demonstrates the subject condition was open and obvious and not concealed, and
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
also supports Defendants’ contention the accumulations of snow and ice 0n the stairs were
naturally occurring, further establishing the lack of a dangerous condition as a matter of law and
the lack of a duty 0n Defendant’s part.2 It never discussed any 0f the individual Defendants. It
does not show he gave any kind 0f notice t0 any 0f the Defendants of the conditions he allegedly
encountered. It does not indicate how long the conditions he encountered had existed. It does
not indicate Whether his observations were made before or after Plaintiff’ s alleged fall. Thus, the
only evidentiary value is Mr. Wright’s observations that the accumulations of wintry
precipitation he observed were naturally occurring.
Plaintiff’s Exhibit F is a report prepared by someone other than any Defendant for only
one Defendant, namely Lincoln Property Company. It predates the incident made the subject 0f
this lawsuit by more than three years. There is no evidence this report was ever seen by any
Defendant or that it reflects the conditions of the stairs on the date in question. The exhibit is
irrelevant.
In sum, Plaintiff’s summary judgment evidence does not defeat the basis of Defendants’
Hybrid Motion for Summary Judgment. If anything, it supports many aspects of Defendant’s
Hybrid Motion for Summary Judgment.
III.
APPLICABLE LEGAL STANDARDS
Why Defendant Wins its Motion
As discussed in Defendant’s Hybrid Motion for Summary Judgment, Plaintiff originally
pleaded a premises liability case, but called it a negligence case. Plaintiff’s Response tries t0
2
That other New York Life employees may have fallen that day is not material to the issue presented in Defendant’s
Hybrid Motion for Summary Judgment. Other people falling on other stairs is not relevant to the issues of notice,
control, or natural accumulation, as there is no evidence Defendant was aware of any of these other alleged
incidents.
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
prove a negligence case, but does not directly contradict Defendant’s issues 0f notice, control, or
lack 0f a dangerous condition as a matter 0f law.
Interestingly, Plaintiff amended her petition seven days before hearing to add a premises
liability claim. However, as stated in Defendant’s Hybrid Motion, any inclusion of a premises
liability claim would also be covered by the Traditional Motion. See Simpson v. Sargent, 144
S.W.3d 113, 121 (Tex. App.—F0rt Worth 2004, pet. denied). Further, slip—and-fall and trip—and-
fall cases such as this one have consistently been treated as premises defect causes of
action. Sampson v. Univ. 0f Tex. at Austin, 500 S.W.3d 380, 391 (TeX. 2016). In such cases, the
plaintiff alleges injury as a result 0f a physical condition or defect left 0n the premises, “not as a
contemporaneous result of someone's negligence.” Keetch v. Kroger Ca, 845 S.W.2d 262, 264
(Tex. 1992). Plaintiff has yet to identify a contemporaneous activity that allegedly caused her
injuries. Indeed, her complaints are based oftentimes as failures t0 take some type 0f
action. Therefore, Defendants are still entitled t0 summary judgment on all claims pleaded
against them in this matter.
IV.
DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF
PRESENTS NO EVIDENCE TO SHOW NOTICE, TO SHOW CONTROL, OR TO
DISPUTE DEFENDANTS’ ASSERTION OF NATURAL ACCUMULATION OF
ICE AND SNOW
Summary judgment should be granted because Defendants have established as a matter of
law, through its own evidence and Plaintiff s own evidence, that Plaintiff cannot present more than
a scintilla of evidence to defeat Defendants’ issues regarding notice, control, and natural
accumulation of ice and snow. This failure t0 positively present evidence t0 create a fact issue on
any 0f these issues means that all Defendants are entitled t0 summary judgment as a matter 0f law.
B.C. v. SteakN Shake Operations, Ina, 532 S.W.3d 547, 549 (TeX. App.—Dallas 2017, pet. filed)
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
(summary judgment must be granted t0 movant in the absence of a legally adequate response by the
non—movant).
As discussed in Defendants’ Hybrid Motion, in the absence 0f any evidence that a
Defendant created a dangerous condition, knew 0f a dangerous condition, or should have known
about a dangerous condition, Plaintiff cannot sustain a premises liability against the Defendants.
The Defendants are entitled to summary judgment as a result. Plaintiff has presented or argued
nothing 0f the sort. Similarly; Plaintiff has presented n0 evidence 0n this issue 0f control, With the
singular exception that Lincoln Property Company Commercial, Inc. purportedly had a
responsibility t0 conduct an inspection of the premises. This entitles the remaining three
Defendants summary judgment 0n the issue. Finally, naturally occurring ice that accumulates
without the assistance or involvement 0f unnatural contact is not an unreasonably dangerous
condition sufficient t0 support a premises liability claim. Scott & White Mem. Hosp. v. Fair, 310
S.W.3d 41 1, 414 (TeX. 2010). Jamie Wright’s affidavit, as offered by Plaintiff, proves the snow and
ice had not been molested prior t0 the alleged incident. As such, it has been proven as a matter of
law that the snow and ice on the stairs was naturally occurring and could not be an unreasonably
dangerous condition as a matter 0f law.
V.
CONCLUSION AND PRAYER
Defendants’ Hybrid Motion presents simple issues its evidence and Plaintiff’s evidence
prove: Defendants are entitled t0 summary judgment on the claims against them. There is no
evidence showing how long the allegedly hidden ice had existed under the snow. There is n0
evidence to show three of the Defendants had any control over the subject property. The
remaining Defendant has no evidence brought against it to When 0r if it conducted inspections 0f
the subject area. There is no evidence t0 show that the snow and ice 0n the stairs was anything
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
but a natural accumulation 0f wintry precipitations. Defendants are entitled t0 summary
judgment.
WHEREFORE, PREMISES CONSIDERED, Defendants Lincoln Property Company
Management, Inc., Lincoln Property Company, Lincoln Property Company Commercial, Inc.,
and Loch Energy Square, LP request judgment be rendered in favor of each Defendant, that
Plaintiff take nothing by her action, and for such other and further relief to Which each Defendant
may be entitled, either at law or in equity.
Respectfully Submitted,
/s/Michael A. Miller
MICHAEL A. MILLER
StateBar N0. 14100650
mmiller@tmlfpc.com
CLARK S. BUTLER
StateBar No. 00793437
cbutler@tm1fpc.com
THE MILLER LAW FIRM
1950 Turtle Creek Center
3811 Turtle Creek Boulevard
Dallas, Texas 752 1 9
(469) 916—2552
(469) 9 1 6—2555 fax
COUNSEL FOR DEFENDANTS
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
CERTIFICATE OF SERVICE
I certify that true copies 0f Defendants’ Reply were served on counsel 0f record for
Plaintiff as indicated below by way 0f efiling and/orfacsimile 0n the 14th day 0f March, 2019.
COUNSEL FOR PLAINTIFFS
W. Kelly Puls
Mark Haney
PULS HANEY LYSTER, PLLC
301 Commerce Street, Suite 2900
Fort Worth, Texas 76102
Thomas M. Michel
Griffith, Jay & Michel, LLP
2200 Forest Park Blvd.
Fort Worth, Texas 761 10
J. Patrick Gallagher
J. Patrick Gallagher, PC
555 South Summit Avenue
Fort Worth, Texas 76104
/s/ Clark S. Butler
CLARK s. BUTLER
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT
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FILED DALLAS COUNTY 3/14/2019 7:27 PM FELICIA PITRE DISTRICT CLERK Veronica Vaughn CAUSE NO. DC-16-07145 LEZLIE A. JOHNSTON, IN THE DISTRICT COURT OF Plaintiffi vs. 101“ JUDICIAL DISTRICT, TEXAS LINCOLN PROPERTY COMPANY mmmmmmmmmmmmm MANAGEMENT, INC., LINCOLN PROPERTY COMPANY, LINCOLN PROPERTY COMPANY COMMERCIAL, INC., and LOCH ENERGY SQUARE, LP, DALLAS COUNTY, TEXAS Defendant. DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE WILLIAMS: COME NOW Lincoln Property Company Management, Inc., Lincoln Property Company, Lincoln Property Company Commercial, Inc., and Loch Energy Square, LP, (hereinafter collectively “Defendants”), Defendants in the above-entitled matter, and file this, their Reply t0 Plaintiff’s Response t0 Defendant’s Traditional and Hybrid Motions for Summary Judgment. As Will be shown herein, Defendants has shown themselves entitled to summary judgment in this matter under a variety 0f theories. In support thereof, Defendants would respectfully show the Court the following: I. SUMMARY OF REPLY This is a simple case; it’s a slip and fall case. Similarly, the issues presented by Defendants in its Motion for Summary Judgment are simple. Did any Defendant have actual knowledge 0f the dangerous condition? Which Defendant, if any, had control of the premises necessary for the assertion of a premises liability claim? Has Defendant demonstrated that the snow and ice DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT accumulated naturally? Defendants have made a prima fascia showing 0f Why each is entitled to summary judgment on the claims against it in this matter as Will be discussed herein. Plaintiff’s Response is essentially the same Response it filed in response to Defendant Lincoln Property Company Management, Inc.’s Traditional Motion for Summary Judgment. As a result, it does not provide a basis to deny Defendants’ Hybrid Motion, for the following reasons: 1. Plaintiff’s Response tries to prove a case for “negligence” rather than show that any one 0f the Defendants exercised control over the premises, had notice 0f the actual condition, or that the snow and ice were not natural accumulations 0f wintry precipitation. 2. Plaintiff’s summary judgment evidence, When reviewed, does not say What Plaintiff claims it does, and does not controvert Defendants’ Hybrid motion 0r its summary judgment evidence. II. PLAINTIFF’S EVIDENCE PROVES NOTHING BENEFICIAL TO PLAINTIFF Plaintiff’s summary judgment evidence is not oriented to controverting Defendant’s traditional motion on the defense 0f open and obvious. Instead, it is oriented t0 proving a negligence claim When, in reality, Plaintiff has pleaded a premises liability claim. As Will be shown herein, Plaintiff s evidence does not address the merits 0f Defendants’ Hybrid Motion.1 Plaintiff s Exhibit A is testimony from Plaintiff herself. In that testimony, she admits she used the subject stairs she slipped on for at least two months prior t0 the alleged slip and fall. (PE A, page 112, lines 17-22). She had a general awareness that snow had fallen in the days before the alleged incident. (PE A, page 113, lines 14-24, page 225, lines 2-4). She knew there was snow on the stairs 0n the day in question and it might be slippery, so she exercised caution by walking slowly down the stairs and holding onto the handrail. (PE A, page 118, lines 17-25, 1 Defendants reserve the right to file objections to Plaintiff” s summary judgment evidence either in conjunction with trial or any pre-trial proceedings, and its discussion herein is not a waiver of any obj ections any Defendant has to the proffered evidence. DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT page 119, lines 1-8, page 121, lines 1-4). It was cold that day. (PE A, page 121, lines 20-22). After successfully negotiating several 0f the stairs, she slipped and bumped her way down almost the rest 0f the way down the stairs. (PE A, page 121, line 24-25, page 122, lines 1-4). She had made it down the same set 0f snowy stairs the day before. (PE A, page 212, lines 5-17). Because the snow and ice were noticed and not concealed, it is open and obvious as a matter of law. See Lopez v. Ensign United States S. Drilling, LLC, 524 S.W.3d 836, 847-48 (Tex. App.—Houst0n [14th Dist. 2017, n0 pet). However, Plaintiff argues that, While she had awareness of the snow 0n the ground, she was not aware 0f ice supposedly underneath the snow and, therefore, she slipped on a concealed condition. Defendants disagree With this attempt t0 improperly hair-split the law. Texas law is clear that the hazard and/or condition, i.e. slipperiness, unevenness of the floor, lack 0f handrails, is what premises liability is concerned with, not what creates the hazard or condition. See Simpson v Orange Cly. Bldg. Materials, Ina, 2019 TeX. App. LEXIS 884, at *6 (TeX. App.—Beaum0nt Feb. 7, 2019, no pet. h.) ([T]he open and obvious nature 0f the hazard... negates the landowner’s.... duty.) (emphasis supplied). That said, assuming arguendo that Plaintiff’s position is correct, then Plaintiff has no evidence t0 show that any Defendant had any actual knowledge 0f the purportedly concealed ice, that any Defendant created the purportedly concealed ice, or had reasonable opportunity to discover the purportedly concealed ice. Plaintiff presents this Court With no evidence showing how long the purportedly concealed ice had lurked underneath the snowfall Plaintiff concedes was Visible on the steps. Therefore, Plaintiff has n0 evidence to show any Defendant had any knowledge 0f the allegedly dangerous condition. Summary judgment on this issue is proper for all Defendants. Plaintiffs Exhibit B is purported to be testimony 0f “Defendant’s” corporate representative. It is not. As the first page of the exhibit shows, and as Ms. Trepagnier testified DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT 0n page 44 of her deposition, she was testifying as the corporate representative of Defendant Loch Energy Square, LP, not the other Defendants. (PE B, page 44, lines 14-17, page 45, lines 9- 11). Further, she testified over objection that it was her understanding Lincoln Property Company Commercial, Inc. would have inspected the stairs, not any of the other Defendants. Ms. Trepagnier’s testimony exculpates Defendants Loch Energy Square LP, Lincoln Property Company, and Lincoln Property Company Commercial, Inc. However, t0 the extent Ms. Trepagnier suggests it was the responsibility of Defendant Lincoln Property Company Management, Inc.’s responsibility t0 inspect the subject stairs, that evidence does not create culpability 0n that entity’s part. As discussed above, Plaintiff fails t0 present evidence of When or if that Defendant performed inspections. Further, as Plaintiff’s own evidence Will show, any snow and ice that had accumulated 0n the stairs was a natural accumulation, and therefore does not constitute an unreasonably dangerous condition as a matter of Texas law. In sum. Ms. Trepagnier’s testimony exonerates three Defendants and does not show any liability on the remaining Defendant. Plaintiff’ s Exhibit C is a record 0f weather conditions at DFW Airport for the month of February, 2015 and March, 2015. The incident made the subject 0f this suit occurred 0n Greenville Avenue in Dallas on March 6, 2015. Defendant fails t0 see how evidence 0f weather in February, 2016 is relevant to the issue of whether a condition was open and obvious in March. Further, the data for the 6th of March 0n 2015 shows a 10w temperature well below the freezing point of water, at least at DFW Airport. There is n0 evidence that the area around the subject building 0n Greenville Avenue in Dallas experienced the exact same weather conditions. A11 this exhibit proves is that it was cold in the Dallas area at the time 0f the alleged incident, Which we already knew because of the snow 0n the stairs at the time of the incident. This exhibit does DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT not address Defendants’ defenses 0f lack 0f control and lack 0f notice and inferentially supports Defendants’ assertion the wintry precipitation had naturally accumulated 0n the Plaintiff’ s Exhibit D is an affidavit from Jim Sealy. This is clearly the evidence Plaintiff believes makes their case. Close examination 0f the affidavit proves this belief t0 be false. This Exhibit is the best example of the fact that Plaintiff is trying to prove a negligence case instead 0f trying t0 defeat Defendants’ notice issue, control issue, and natural accumulation 0f ice and snow issue. Mr. Sealy’s opinions in his affidavit do not address any 0f these issues. Instead, he seems intent on interpreting the Dallas Building Code as making property owners strictly liable for any accident that occurs 0n their property. This is contrary t0 Texas common law, Which holds that premises owners are not the insurers of their invitees. Austin v. Kroger Tex, L.P., 465 SW.3d 193, 203 (Tex. 2015). Further, Mr. Sealy has n0 personal knowledge regarding the condition of the subj ect stairs, especially Whether 0r not there was any ice 0n the stairs on the day in question. More specifically, Mr. Sealy does not address which Defendant he believes had control 0f the premises for the purposes of a premises liability claim. He does not present any evidences how long the ice had allegedly been 0n the stairs. He does not present any evidence t0 show that the accumulation 0f snow and ice 0n the stairs was anything but a natural accumulation. In sum, Mr. Sealy’s opinions and statements, and indeed, his entire affidavit, are not relevant t0 the dispositive issues presented t0 the Court in Defendants’ Hybrid Motion for Summary Judgment. Plaintiff s Exhibit E is an affidavit from Jamie Wright, an employee 0f New. York Life at the time 0f the incident. He took photographs that, while discussed in the affidavit, are not attached t0 the affidavit. He states his belief that no preventative measures had been taken by anyone in the area of the fall. He states that snow and ice are visible in the photos (emphasis supplied). This demonstrates the subject condition was open and obvious and not concealed, and DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT also supports Defendants’ contention the accumulations of snow and ice 0n the stairs were naturally occurring, further establishing the lack of a dangerous condition as a matter of law and the lack of a duty 0n Defendant’s part.2 It never discussed any 0f the individual Defendants. It does not show he gave any kind 0f notice t0 any 0f the Defendants of the conditions he allegedly encountered. It does not indicate how long the conditions he encountered had existed. It does not indicate Whether his observations were made before or after Plaintiff’ s alleged fall. Thus, the only evidentiary value is Mr. Wright’s observations that the accumulations of wintry precipitation he observed were naturally occurring. Plaintiff’s Exhibit F is a report prepared by someone other than any Defendant for only one Defendant, namely Lincoln Property Company. It predates the incident made the subject 0f this lawsuit by more than three years. There is no evidence this report was ever seen by any Defendant or that it reflects the conditions of the stairs on the date in question. The exhibit is irrelevant. In sum, Plaintiff’s summary judgment evidence does not defeat the basis of Defendants’ Hybrid Motion for Summary Judgment. If anything, it supports many aspects of Defendant’s Hybrid Motion for Summary Judgment. III. APPLICABLE LEGAL STANDARDS Why Defendant Wins its Motion As discussed in Defendant’s Hybrid Motion for Summary Judgment, Plaintiff originally pleaded a premises liability case, but called it a negligence case. Plaintiff’s Response tries t0 2 That other New York Life employees may have fallen that day is not material to the issue presented in Defendant’s Hybrid Motion for Summary Judgment. Other people falling on other stairs is not relevant to the issues of notice, control, or natural accumulation, as there is no evidence Defendant was aware of any of these other alleged incidents. DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT prove a negligence case, but does not directly contradict Defendant’s issues 0f notice, control, or lack 0f a dangerous condition as a matter 0f law. Interestingly, Plaintiff amended her petition seven days before hearing to add a premises liability claim. However, as stated in Defendant’s Hybrid Motion, any inclusion of a premises liability claim would also be covered by the Traditional Motion. See Simpson v. Sargent, 144 S.W.3d 113, 121 (Tex. App.—F0rt Worth 2004, pet. denied). Further, slip—and-fall and trip—and- fall cases such as this one have consistently been treated as premises defect causes of action. Sampson v. Univ. 0f Tex. at Austin, 500 S.W.3d 380, 391 (TeX. 2016). In such cases, the plaintiff alleges injury as a result 0f a physical condition or defect left 0n the premises, “not as a contemporaneous result of someone's negligence.” Keetch v. Kroger Ca, 845 S.W.2d 262, 264 (Tex. 1992). Plaintiff has yet to identify a contemporaneous activity that allegedly caused her injuries. Indeed, her complaints are based oftentimes as failures t0 take some type 0f action. Therefore, Defendants are still entitled t0 summary judgment on all claims pleaded against them in this matter. IV. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF PRESENTS NO EVIDENCE TO SHOW NOTICE, TO SHOW CONTROL, OR TO DISPUTE DEFENDANTS’ ASSERTION OF NATURAL ACCUMULATION OF ICE AND SNOW Summary judgment should be granted because Defendants have established as a matter of law, through its own evidence and Plaintiff s own evidence, that Plaintiff cannot present more than a scintilla of evidence to defeat Defendants’ issues regarding notice, control, and natural accumulation of ice and snow. This failure t0 positively present evidence t0 create a fact issue on any 0f these issues means that all Defendants are entitled t0 summary judgment as a matter 0f law. B.C. v. SteakN Shake Operations, Ina, 532 S.W.3d 547, 549 (TeX. App.—Dallas 2017, pet. filed) DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT (summary judgment must be granted t0 movant in the absence of a legally adequate response by the non—movant). As discussed in Defendants’ Hybrid Motion, in the absence 0f any evidence that a Defendant created a dangerous condition, knew 0f a dangerous condition, or should have known about a dangerous condition, Plaintiff cannot sustain a premises liability against the Defendants. The Defendants are entitled to summary judgment as a result. Plaintiff has presented or argued nothing 0f the sort. Similarly; Plaintiff has presented n0 evidence 0n this issue 0f control, With the singular exception that Lincoln Property Company Commercial, Inc. purportedly had a responsibility t0 conduct an inspection of the premises. This entitles the remaining three Defendants summary judgment 0n the issue. Finally, naturally occurring ice that accumulates without the assistance or involvement 0f unnatural contact is not an unreasonably dangerous condition sufficient t0 support a premises liability claim. Scott & White Mem. Hosp. v. Fair, 310 S.W.3d 41 1, 414 (TeX. 2010). Jamie Wright’s affidavit, as offered by Plaintiff, proves the snow and ice had not been molested prior t0 the alleged incident. As such, it has been proven as a matter of law that the snow and ice on the stairs was naturally occurring and could not be an unreasonably dangerous condition as a matter 0f law. V. CONCLUSION AND PRAYER Defendants’ Hybrid Motion presents simple issues its evidence and Plaintiff’s evidence prove: Defendants are entitled t0 summary judgment on the claims against them. There is no evidence showing how long the allegedly hidden ice had existed under the snow. There is n0 evidence to show three of the Defendants had any control over the subject property. The remaining Defendant has no evidence brought against it to When 0r if it conducted inspections 0f the subject area. There is no evidence t0 show that the snow and ice 0n the stairs was anything DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT but a natural accumulation 0f wintry precipitations. Defendants are entitled t0 summary judgment. WHEREFORE, PREMISES CONSIDERED, Defendants Lincoln Property Company Management, Inc., Lincoln Property Company, Lincoln Property Company Commercial, Inc., and Loch Energy Square, LP request judgment be rendered in favor of each Defendant, that Plaintiff take nothing by her action, and for such other and further relief to Which each Defendant may be entitled, either at law or in equity. Respectfully Submitted, /s/Michael A. Miller MICHAEL A. MILLER StateBar N0. 14100650 mmiller@tmlfpc.com CLARK S. BUTLER StateBar No. 00793437 cbutler@tm1fpc.com THE MILLER LAW FIRM 1950 Turtle Creek Center 3811 Turtle Creek Boulevard Dallas, Texas 752 1 9 (469) 916—2552 (469) 9 1 6—2555 fax COUNSEL FOR DEFENDANTS DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE I certify that true copies 0f Defendants’ Reply were served on counsel 0f record for Plaintiff as indicated below by way 0f efiling and/orfacsimile 0n the 14th day 0f March, 2019. COUNSEL FOR PLAINTIFFS W. Kelly Puls Mark Haney PULS HANEY LYSTER, PLLC 301 Commerce Street, Suite 2900 Fort Worth, Texas 76102 Thomas M. Michel Griffith, Jay & Michel, LLP 2200 Forest Park Blvd. Fort Worth, Texas 761 10 J. Patrick Gallagher J. Patrick Gallagher, PC 555 South Summit Avenue Fort Worth, Texas 76104 /s/ Clark S. Butler CLARK s. BUTLER DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S HYBRID MOTION FOR SUMMARY JUDGMENT