Preview
FILED
12/29/2023 4:15 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-22-06343
GARRETT RYDER, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 134th JUDICIAL DISTRICT
§
BOOMERJACK’S ADDISON, LLC, §
§
§
§
Defendant. § DALLAS COUNTY, TEXAS
DEFENDANT’S TRADITIONAL AND NO-EVIDENCE
MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Boomerjack’s Addison, LLC (“Defendant” or “Sidecar
Social”) and files this, its Traditional and No-Evidence Motions for Summary Judgment pursuant
to Rule 166a of the Texas Rules of Civil Procedure. In support of this Motion, Defendant would
respectfully show the Court the following:
I. FACTUAL BACKGROUND
1. This is a slip and fall case. Plaintiff Garrett Ryder (“Ryder”) allegedly patronized
the Boomerjack’s Addison, LLC “Sidecar Social” location in Addison Texas on April 10, 2022.
Ryder alleges he fell on the ramp leaving the restaurant and has alleged various injuries. Plaintiff
filed his original petition on June 23rd, 2022. Defendant answered on December 5, 2022. This
case is currently set for trial January 3rd, 2024 and this is the first trial setting.
1.2 Plaintiff arrived at the Sidecar Social restaurant at approximately 9:34pm and
checked out at approximately 10:05pm. On the way out of the restaurant, Plaintiff claims he
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MOTIONS FOR SUMMARY JUDGMENT
slipped and fell on the wooden ramp leading out of the patio area. The ramp in question is
pictured below:
1.3 Plaintiff’s original petition claims this ramp was wet due to just being mopped.
Setting aside the absurdity of mopping an outdoor wooden ramp, Plaintiff’s deposition testimony
is conflicting on this topic:
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MOTIONS FOR SUMMARY JUDGMENT
1.4 Plaintiff testified that he doesn’t know he slipped because of the water, he
assumes so because otherwise he wouldn’t have slipped. Secondly, Plaintiff testified that he
DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 3 of 17
MOTIONS FOR SUMMARY JUDGMENT
didn’t even see the ramp was wet – he assumes so because the lady was mopping in that other
area.
1.5 Plaintiff testified he saw the lady mopping and the yellow commercial mop
bucket prior to his fall.
1.6 Additionally, Plaintiff’s friend told a different story. The Addison EMS records
state that “Patient’s friend stated he was walking out to the car when the patient slipped in mud,
fell, and hit his head on a tree.”
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MOTIONS FOR SUMMARY JUDGMENT
1.7 There are no trees on the ramp where Plaintiff claims he fell. However, there are
trees at the end of the ramp in the parking lot, which is not Defendant’s property.
II. SUMMARY OF ARGUMENTS
2.1 Plaintiff’s claims and causes of action against Defendant fail as a matter of law
because:
1. Under Texas law, Plaintiff is limited to a premises liability claim;
2. Plaintiff cannot identify any unreasonably dangerous condition. Plaintiff only
“assumes” it was water on the ramp because he claims he saw a lady mopping
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MOTIONS FOR SUMMARY JUDGMENT
(mopping an outdoor wooden ramp…) but also testified he never saw the water
on the ramp and woke up in the ambulance.
3. Defendants did not have actual or constructive notice of any condition on the
ramp.
4. Even if the ramp were wet, Plaintiff saw the employee mopping with a yellow
mop bucket and therefore could reasonably expect water to be on the ground
around the mop bucket and the lady mopping. Any unreasonably dangerous
condition was therefore open and obvious.
III. TRADITIONAL MOTION FOR SUMMARY JUDGMENT
A. Legal Standard.
3.1 Summary judgment is proper when the movant’s evidence, as a matter of law,
either proves all the elements of the movant’s defense or disproves the facts of at least one
element of the nonmovant’s claim. Johnson v. Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925,
927 (Tex. 1996); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016). A matter is conclusively
established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence.
Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982);
Affordable Motor Co. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App. – Dallas 2011, pet. denied).
3.2 When the movant has established it is entitled to summary judgment as a matter
of law, the nonmovant must produce summary judgment evidence that raises a fact issue. Phan
Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999). The nonmovant cannot discharge his burden by
offering vague allegations and legal conclusions, assertions unsupported by the facts, conclusory
allegations, or by offering a mere scintilla of evidence in support of the essential elements of the
claims. Butler v. Continental Airlines, Inc., 31 S.W.3d 642, 653 (Tex. App.–Houston [1st Dist.]
2000, pet. denied); Lyons v. Linsey Modern Claims Mgmt., 985 S.W.2d 86, 90 (Tex. App.–El
Paso 1998, no pet.).
B. Summary Judgment Evidence.
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MOTIONS FOR SUMMARY JUDGMENT
3.3 In support of its Traditional Motion for Summary Judgment, Defendants have
attached the following evidence to this Motion:
Exhibit A: Deposition Excerpts from the Deposition of Plaintiff Garret Ryder; and
Exhibit B: Excerpts from the Addison EMS Records; and
Exhibit C: Photographs of the area where the incident happened.
C. Premises Liability Standard.
3.4 Under Texas law, general negligence and premises liability are distinct causes of
action, each requiring a distinct duty analysis. See Western Invs., Inc. v. Urena, 162 S.W.3d 547,
550 (Tex. 2005). When the alleged injury is the result of a negligent activity, the injured party
must have been injured by, or as a contemporaneous result of, the activity itself rather than a
condition created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992);
Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 263 (Tex. App.—Dallas 2004, no pet.) When
the alleged injury is the result of the condition of the premises, the injured party can recover only
under a premises liability theory. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.
1992); McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas
1994, writ denied) (op. on reh’g); Gailey v. Mermaid Pools of El Paso, LLC, 322 S.W.3d 246,
349 (Tex. App.—El Paso 2010, pet. denied). Negligent activity and premises liability are both
within the scope of negligence, but negligent activity encompasses a malfeasance theory based
on affirmative, contemporaneous conduct by the owner that caused the injury, while premises
liability encompasses a nonfeasance theory based on the owner’s failure to take measures to
make the property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010).
3.5 It is well settled in Texas that, “Adroit phrasing of the pleadings to encompass
design defects, per se negligence or any other theory of negligence does not affect application of
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MOTIONS FOR SUMMARY JUDGMENT
premises liability law.” McDaniel, 887 S.W.2d at 171 (quoting First Fin. Dev. Corp. v.
Hughston, 797 S.W.2d 286, 191 (Tex. App.—Corpus Christi 1990, writ denied)); see also
Billmeier v. Bridal Shows, Inc., No. 02-08-00314-CV, 2009 WL 1176441, at *4 (Tex. App.—
Fort Worth Apr. 30, 2009, no pet.) (mem. op.); Del Lago Partners, Inc. v. Smith is directly on
point, and dealt with a fight that occurred on the premises (albeit a very different type of
altercation than that which took place in this case). Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 762 (Tex. 2010).
3.6 Plaintiff does not allege a malfeasance theory based on affirmative,
contemporaneous conduct by the owner that caused the injury – instead he complains of alleged
nonfeasance, specifically the premises owner failed to maintain the premises; failed to inspect
the premises, failed to correct the condition, and failed to inform Plaintiff of the condition. This
is a classic premises liability argument, and, ergo, Plaintiff is limited to a premises liability
theory. Defendant is therefore entitled to summary judgment as to Plaintiff’s negligence cause of
action, which is an attempt to plead around a premises liability cause of action. As shown above,
this is directly contrary to Texas law.
D. Plaintiff has not Alleged an Unreasonably Dangerous Condition.
3.7 In Plaintiff’s Original Petition, he claims that the unreasonably dangerous
condition was water on the ramp from mopping by one of Defendant’s employees. Casting aside
for a moment the absurdity of mopping an outdoor wooden ramp, Plaintiff’s testimony is unclear
about the actual hazard.
3.8 On page 32 of his deposition, Plaintiff was asked how the ramp got wet, and he
said he didn’t know. He admitted he “assumed” it was from the mopping. See Exhibit A, p.
32:21-25.
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3.9 Plaintiff further testified that he wasn’t even sure the ramp was wet, that was
another assumption:
See Exhibit A, p.33:1-7.
See Exhibit A, p.38:18-25.
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3.10 Plaintiff’s testimony makes clear 2 things: 1) he doesn’t know whether the ramp
was actually wet or not, he is making an assumption because he slipped; and 2) he doesn’t know
whether the employee even mopped the ramp or not, he is making that assumption because he
slipped and he couldn’t have slipped if it weren’t wet, ergo it must have been wet. Because
Plaintiff doesn’t know what caused his fall, whatever caused his fall cannot be an “unreasonably
dangerous condition.”
E. Defendants did not have Actual or Constructive Knowledge of the Condition
3.11 To prevail in a premises liability case, a Plaintiff must prove, among other things,
that the Defendant had actual or constructive knowledge of some unreasonably dangerous
condition on the premises. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). A
slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the
substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3)
it is more likely than not that the condition existed long enough to give the premises owner a
reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002).
3.12 The so-called “time-notice rule” is based on the premise that temporal evidence
best indicates whether the owner had a reasonable opportunity to discover and remedy a
dangerous condition. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). An
employee's proximity to a hazard with no evidence indicating how long the hazard was there
merely indicates that it was possible for the premises owner to discover the condition, not that
the premises owner reasonably should have discovered it. Id. Constructive notice demands a
more extensive inquiry. Id. Without some temporal evidence, there is no basis upon which the
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MOTIONS FOR SUMMARY JUDGMENT
factfinder can reasonably assess the opportunity the premises owner had to discover the
dangerous condition.
3.13 Plaintiff testified he has no knowledge of how the water got on the ramp, and
consequently, Plaintiff would have no knowledge of how long the water had been there. See
Exhibit A, p. 32:21-25.
3.14 A Texas Supreme Court case is directly on point. In Wal-Mart Stores, Inc. v.
Reece, the Texas Supreme Court addressed a slip and fall case where the plaintiff alleged an
employee of the defendant was in close proximity to the spill on which the plaintiff fell and
therefore had constructive knowledge of the fall. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,
814 (Tex. 2002). However, the Texas Supreme Court held that “there must be some proof of how
long the hazard was there before liability can be imposed on the premises owner for failing to
discover and rectify, or warn of, the dangerous condition. Otherwise, owners would face strict
liability for any dangerous condition on their premises, an approach we have clearly rejected.”
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). The Court concluded:
Reece concedes that she presented no evidence to indicate how long the spill
existed before she fell. There was no evidence that the spill was
conspicuous—it was not large and consisted of a clear liquid on a light tile
floor. There was no evidence that Cloyd saw the spill before Reece fell or that
it was there when he approached the counter. There was no evidence
indicating when or how the spill came to be on the floor. Nor was there
evidence concerning the condition of the spilled liquid that might indicate
how long it had been there. Considering the evidence in the light most
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favorable to Reece, we hold that there is no evidence to support the conclusion
that Wal–Mart had constructive notice of the dangerous condition. Id.
3.15 In the current matter, just as in Wal-Mart, Plaintiff has no evidence of when the
water got on the ramp, how long it had been there, or how it got there. Plaintiff admits he has no
reason to believe any employee of Defendant knew of the water on the ramp, eliminating actual
knowledge as a possibility.
3.16 Based on the holding in Wal-Mart, it would be proper under these nearly identical
facts to hold as a matter of law that Defendant did not have constructive or actual notice of the
condition on the ramp at the Property. Summary Judgment as to Plaintiff’s premises liability
claim would therefore be proper.
F. Even if Plaintiff Alleges an Unreasonably Dangerous Condition, it was Open
and Obvious
3.17 Revived by the Texas Supreme Court’s landmark decision in Austin v. Kroger
Texas, LP, a landowner in Texas does not have a duty to warn of open and obvious dangers, or
dangers an invitee knew about. Austin v. Kroger Texas, LP, 465 S.W.3d 193 (Tex. 2015). As
explained by a Texas federal judge in Hughes v. Kroger:
The Texas Supreme Court recently affirmed that a landowner owes no duty to
warn of open and obvious dangers, or dangers the invitee knew about, on its
premises. Rather, landowners in Texas owe their invitees the “duty to make safe
or warn against any concealed, unreasonably dangerous conditions of which the
landowner is, or reasonably should be, aware but the invitee is not.” In other
words, to impose a duty on a landowner, a plaintiff must prove:
(1) there is an unreasonably dangerous condition on the premises;
(2) the landowner knew, or should have known, about the dangerous
condition;
(3) the condition is concealed (i.e., not “open and obvious”); and
(4) the plaintiff was not aware of the danger. The existence of a duty is
typically a question of law for the Court to decide. Hughes v. Kroger Texas,
LP, 2016 WL 3390510 (N.D. Tex. March 4, 2016) (citing to and quoting
Austin, 465 S.W.3d at 203).
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MOTIONS FOR SUMMARY JUDGMENT
A Texas landowner owes a duty to its invites to “make safe or warn against any
concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should
be, aware but the invitee is not.” Austin, 465 S.W.3d at 203. In other words, as explained by
another federal judge in Texas applying Texas law:
Under Austin v. Kroger, this duty is obviated by a finding that the alleged
dangerous condition was open and obvious [or known to the Plaintiff-invitee].
Since there is no need to warn against obvious or known dangers, a landowner
generally has no duty to warn of hazards that are open and obvious or known to
the invitee.” Harvey v. Carrabba’s Italian Grill, LLC, 2016 WL 3460776, at *4
(E.D. Tex. May 19, 2016) (citing to and quoting Austin, 465 S.W.3d at 204).
Here, Plaintiff testified that he saw the employee mopping the floor as he walked towards
the ramp. See Exhibit A, p. 32:21-25.
Because Plaintiff saw the woman mopping, he would be on notice of the danger of the
floor possibly being wet. While Defendant does not admit or concede that any employee was
actually mopping an outdoor wooden deck or ramp, Plaintiff alleges he saw this prior to the fall
which would make any water on the ground open and obvious to him. That is the entire point of
the yellow mop buckets – to catch your attention and let you know the floor might be wet.
Accordingly, because Plaintiff has failed to prove through his testimony that there was an
unreasonably dangerous condition (he doesn’t even know the ramp was wet!), has failed to prove
Defendants had knowledge of said dangerous condition prior to his fall, and has alleged a
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condition which would be open and obvious to him (if it existed), summary judgment is proper
as to Plaintiff’s premises liability and negligence claims.
IV. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
a. Plaintiff’s negligence claim fails as a matter of law; the only potentially cognizable
claim is for premises liability
Under Texas law, general negligence and premises liability are distinct causes of action,
each requiring a distinct duty analysis. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550
(Tex. 2005). When the alleged injury is the result of a negligent activity, the injured party must
have been injured by, or as a contemporaneous result of, the activity itself rather than a condition
created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Scroggs v. Am.
Airlines, Inc., 150 S.W.3d 256, 263 (Tex. App.—Dallas 2004, no pet.) When the alleged injury
is the result of the condition of the premises, the injured party can recover only under a premises
liability theory. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); McDaniel
v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, writ denied)
(op. on reh’g); Gailey v. Mermaid Pools of El Paso, LLC, 322 S.W.3d 246, 349 (Tex. App.—El
Paso 2010, pet. denied). Negligent activity and premises liability are both within the scope of
negligence, but negligent activity encompasses a malfeasance theory based on affirmative,
contemporaneous conduct by the owner that caused the injury, while premises liability
encompasses a nonfeasance theory based on the owner’s failure to take measures to make the
property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010).
It is well settled in Texas that, “Adroit phrasing of the pleadings to encompass design
defects, per se negligence or any other theory of negligence does not affect application of
premises liability law.” McDaniel, 887 S.W.2d at 171 (quoting First Fin. Dev. Corp. v.
Hughston, 797 S.W.2d 286, 191 (Tex. App.—Corpus Christi 1990, writ denied)); see also
DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 14 of 17
MOTIONS FOR SUMMARY JUDGMENT
Billmeier v. Bridal Shows, Inc., No. 02-08-00314-CV, 2009 WL 1176441, at *4 (Tex. App.—
Fort Worth Apr. 30, 2009, no pet.) (mem. op.); Del Lago Partners, Inc. v. Smith is directly on
point, and dealt with a fight that occurred on the premises (albeit a very different type of
altercation than that which took place in this case). Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 762 (Tex. 2010).
Plaintiff does not allege a malfeasance theory based on affirmative, contemporaneous
conduct by the owner that caused the injury – instead he complains of alleged nonfeasance,
specifically the premises owner failed to maintain the premises; failed to inspect the premises,
failed to correct the condition, and failed to inform Plaintiff of the condition. This is a classic
premises liability argument, and, ergo, Plaintiff is limited to a premises liability theory.
Defendant is therefore entitled to summary judgment as to Plaintiff’s negligence cause of action,
which is an attempt to plead around a premises liability cause of action. As shown above, this is
directly contrary to Texas law.
A. Argument and Authorities – No Evidence Motion
1. No evidence standard of review.
“A no evidence summary judgment is the functional equivalent of a pre-trial directed
verdict.” Aguirre v. South Tex. Blood and Tissue Center, 2 S.W.3d 454, 456 (Tex. App. San
Antonio 1999, writ denied). “The new no-evidence summary judgment shifts the burden of proof
to the non-movant to present enough evidence to be entitled to a trial. If the non-movant is
unable to provide enough evidence, then the trial court must grant the motion.” Lampasas v.
Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.] 1999, n.p.h.).
The Texas Rules of Civil Procedure provide that a party may move for a summary judgment
where there is no evidence of one of the elements of a claim. TEX. R. CIV. P. 166 a(i) provides:
DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 15 of 17
MOTIONS FOR SUMMARY JUDGMENT
After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on
the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would
have the burden of proof at trial. The motion must state the
elements as to which there is no evidence. The court must grant the
motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.
2. Plaintiff has no evidence of premises liability.
To succeed on a premises liability claim, an invitee must prove the following elements:
(1) actual or constructive knowledge of a condition on the premises by the owner or occupier; (2)
that the condition posed an unreasonable risk of harm; (3) that the owner or occupier did not
exercise reasonable care to reduce or eliminate the risk; and (4) that the owner or occupier's
failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen,
15 S.W.3d 97, 99 (Tex. 2000).
Plaintiff has no evidence to create an issue of fact on any of these elements. Specifically,
Plaintiff has no evidence of actual or constructive knowledge by Boomerjack’s of any condition
on the premises, no evidence that the condition posed an unreasonable risk of harm, no evidence
that Boomerjack’s did not exercise reasonable care to reduce or eliminate the risk, or that the
failure to use such care proximately caused Plaintiff’s injury. Accordingly, summary judgment is
proper.
V. CONCLUSION
In summary, the circumstances alleged are only cognizable under a theory of premises
liability, and that claim clearly fails as a matter of law. There is no viable claim for gross
negligence absent liability for damages under a negligence theory. Defendant therefore
respectfully request that this Court grant this Motion for Summary Judgment in its entirety, enter
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MOTIONS FOR SUMMARY JUDGMENT
a take nothing judgment on all claims asserted by Plaintiff against Defendant, and for such other
or further relief to which Defendant may be justly entitled.
Respectfully submitted,
/s/ Dylan P. Savage
DYLAN P. SAVAGE
State Bar No. 24075522
MATT R. PICKELMAN
State Bar No. 24013328
QUILLING, SELANDER, LOWNDS,
WINSLETT & MOSER, P.C.
2001 Bryan Street, Suite 1800
Dallas, TX 75201
214.871.2100
214.871.2111 Facsimile
dsavage@qslwm.com
mpickelman@qslwm.com
ATTORNEYS FOR DEFENDANT
BOOMERJACK’S ADDISON, LLC
CERTIFICATE OF SERVICE
The undersigned counsel certifies that on the 29th day of December 2023, a true and
correct copy of the foregoing was electronically filed with the Court in compliance with the
Texas Rules of Civil Procedure.
/s/ Dylan P. Savage
DYLAN P. SAVAGE
DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 17 of 17
MOTIONS FOR SUMMARY JUDGMENT
EXHIBIT A
Page 1 (Pages 1-4)
VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER
Page 1 Page 3
·1· NO. DC-22-06343 ·1· TABLE OF CONTENTS
·· ·· PAGE
·2· GARRETT RYDER, § IN THE DISTRICT COURT ·2·
·· Plaintiff, §
·3· § ·· Appearances...................................... 2
· · VS. § DALLAS COUNTY, TEXAS ·3·
·4· § ·· GARRETT WAYNE RYDER
· · BOOMERJACK'S ADDISON, LLC, § ·4·
·5· Defendant. § 134TH JUDICIAL DISTRICT
·· ·· Examination by Mr. Savage........................ 4
·6· ·5·
·· ·· Changes and Signature............................ 91
·7· ·6· Reporter's Certification......................... 93
·· ·7· EXHIBITS
·8·
·· ·· NUMBER DESCRIPTION PAGE
·9· ----------------------------------- ·8·
·· ORAL AND VIDEOTAPED DEPOSITION OF ·· Exhibit 1 Photograph 23
10· GARRETT WAYNE RYDER ·9·
·· SEPTEMBER 25, 2023
11· ----------------------------------- ·· Exhibit 2 Photograph 24
·· 10·
12· ·· Exhibit 3 Photograph 26
·· 11·
13·
·· ·· Exhibit 4 Photograph 33
14· 12·
·· ·· Exhibit 5 Addison Fire Department 44
15· ORAL AND VIDEOTAPED DEPOSITION OF GARRETT 13· Patient Care Record
·· Exhibit 6 (Skipped)
16· WAYNE RYDER, produced as a witness at the instance of 14·
·· 15· Exhibit 7 (Skipped)
17· the Defendant, and duly sworn, was taken in the 16· Exhibit 8 Google Maps image 66
·· 17·
18· above-styled and -numbered cause on September 25, 2023, ·· VIDEOS
··
19· from 10:28 a.m. to 12:38 p.m., before Angela L. Mancuso, 18·
·· ·· BEGINNING OF VIDEO 1............................. 4
20· CSR No. 4514 in and for the State of Texas, reported by 19· BEGINNING OF VIDEO 2............................. 7
·· ·· BEGINNING OF VIDEO 3............................. 69
21· machine shorthand, at the offices of Quilling, Selander,
·· 20·
22· Lownds, Winslett & Moser, P.C., 2001 Bryan Street, 21·
·· 22·
23· Suite 1800, Dallas, Texas, pursuant to the Texas Rules 23· REPORTER'S NOTE:
·· Quotation marks are used for clarity and do
24· of Civil Procedure, Notice, and any provisions stated on 24·
·· ·· not necessarily reflect a direct quote.
25· the record. 25·
Page 2 Page 4
·1· A P P E A R A N C E S ·1· P R O C E E D I N G S
·2·
·2· (September 25, 2023, 10:28 a.m.)
· · FOR THE PLAINTIFF:
·3· ·3· THE VIDEOGRAPHER: We are going on the
·· MS. MALLORY MOXHAM
·4· record, September 25th, 2023, for the deposition of
·4· DASPIT LAW FIRM
·· 1200 Summit Avenue ·5· Garrett Ryder, in a case styled Garrett Ryder versus
·5· Suite 504
·6· Boomerjack's Addison, LLC, Cause Number DC-22-06343.
·· Fort Worth, Texas 76102
·6· (888) 273-1045 ·7· The time is now 10:28 a.m.
·· wmorrison@daspitlaw.com
·8· Will counsel please state their appearances
·7·
·8· FOR THE DEFENDANT: ·9· for the record; following, will the court reporter
·9· MR. DYLAN P. SAVAGE
10· please swear in the witness.
·· QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C.
10· 2001 Bryan Street 11· MS. MOXHAM: My name is Mallory Moxham.
·· Suite 1800
12· I'm located in Dallas County, Texas, and I'm here on
11· Dallas, Texas 75201
·· (214) 871-2100 13· behalf of the plaintiff.
12· dsavage@qslwm.com
14· MR. SAVAGE: Dylan Savage, on behalf of
13·
· · ALSO PRESENT: 15· the Boomerjack's defendants.
14·
16· (Witness sworn by reporter)
·· Ms. Lisa Block, Videographer
15· On The Record Legal Video 17· GARRETT WAYNE RYDER,
·· 6106 Keller Springs
18· having been first duly sworn, testifies as follows:
16· Dallas, Texas 75248
·· (214) 236-5881 19· EXAMINATION
17· briankjames@ontherecordlv.com
20· BY MR. SAVAGE:
18·
19· 21· Q. All right. Mr. Ryder, my name is Dylan
20·
22· Savage. I'm an attorney, and I represent Boomerjack's
21·
22· 23· in this lawsuit which you filed against them.
23·
24· Do you understand who I am and who I
24·
25· 25· represent?
STAUTNER, KLINGHAMER & ASSOCIATES, INC.
Page 2 (Pages 5-8)
VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER
Page 5 Page 7
·1·· · · ·A.· ·Yes, sir. ·1·· · · ·A.· ·Or I've been living there for, like, three
·2·· · · ·Q.· ·And you understand that the court reporter ·2·· ·years.··So ...
·3·· ·just swore you in, so everything you say today is ·3·· · · ·Q.· ·No.··The Stephanie Ellis, she's the Stephanie
·4·· ·testimony just the same as if you were in a courtroom, ·4·· ·that was with you at Boomerjack's on the day of the
·5·· ·before a judge and a jury.··Do you understand that? ·5·· ·fall?
·6·· · · ·A.· ·I understand. ·6·· · · ·A.· ·No, she was not there, no.
·7·· · · ·Q.· ·Okay.··Now, if you need me to repeat or ·7·· · · ·Q.· ·She was not.··Okay.
·8·· ·rephrase any questions, I mean, sometimes they come out ·8·· · · ·A.· ·But that's where I was -- that's where I was
·9·· ·funny, but they're not intended to be tricky -- ·9·· ·living at.
10·· · · ·A.· ·Yeah. 10·· · · ·Q.· ·Okay.··And how long have you lived with
11·· · · ·Q.· ·-- or anything like that, so if it comes out, 11·· ·Stephanie Ellis?
12·· ·just say, "What did you mean by that?" or "Can you 12·· · · ·A.· ·Probably since 2021, about -- maybe two years,
13·· ·clarify that?"··I'm happy to do it.··Okay? 13·· ·two and a half years, something like that.
14·· · · ·A.· ·Okay. 14·· · · ·Q.· ·And what is her phone number?
15·· · · ·Q.· ·Did you review any documents to prepare for 15·· · · ·A.· ·Let me get it.··One second.··One moment.··Let
16·· ·your deposition today?··And let me clarify.··I'm not 16·· ·me pull it up.··It's (214) 356-7882.
17·· ·asking what your attorney might have said to you. 17·· · · · · · · · ·MR. SAVAGE:··Okay.··And I apologize.··Can
18·· · · ·A.· ·Oh, no, I didn't.··They're going to -- I just 18·· ·we go off the record.
19·· ·pretty much just talked to her, like, a few minutes 19·· · · · · · · · ·THE VIDEOGRAPHER:··Going off record at
20·· ·before, but document-wise, no. 20·· ·10:31.
21·· · · ·Q.· ·Okay.··Any photographs, notes, medical 21·· · · · · · · · ·(Recess from 10:31 a.m. to 10:54 a.m.)
22·· ·records, anything of that nature you reviewed? 22·· · · · · · · · ·THE VIDEOGRAPHER:··We are back on the
23·· · · ·A.· ·No.··I mean, just whatever from the hospital 23·· ·record with Clip 2, at 10:54.
24·· ·or something.··I don't know.··But I haven't seen 24·· ·BY MR. SAVAGE:
25·· ·anything personally. 25·· · · ·Q.· ·All right.··Mr. Ryder, the Bent Tree Forest
Page 6 Page 8
·1·· · · ·Q.· ·Okay.··Can you state your full name on the ·1·· ·Drive address, did you say you've lived there -- for how
·2·· ·record, please. ·2·· ·many years?
·3·· · · ·A.· ·Sure.··Garrett Wayne Ryder. ·3·· · · ·A.· ·About -- about two.
·4·· · · ·Q.· ·Wayne, like W-a-y-n-e? ·4·· · · ·Q.· ·And where did you live before that?
·5·· · · ·A.· ·Yes. ·5·· · · ·A.· ·I was living in Plano.
·6·· · · ·Q.· ·And what is your date of birth, sir? ·6·· · · ·Q.· ·What was the address?··Do you remember?
·7·· · · ·A.· ·11/04/1988. ·7·· · · ·A.· ·I forgot, exactly.··It's off of Hathaway
·8·· · · ·Q.· ·All right.··And what is your current address? ·8·· ·Parkway.··It was an apartment.··I forgot the exact
·9·· · · ·A.· ·5325 Bent Tree Forest Drive, Apartment 1139, ·9·· ·address.··It's been a little while.··But ...
10·· ·Dallas, Texas 75248. 10·· · · ·Q.· ·And you said Stephanie Ellis is just a friend?
11·· · · ·Q.· ·Okay.··And generally where in Dallas is that? 11·· · · ·A.· ·Just a friend, yeah.
12·· · · ·A.· ·It's by the Galleria, North Dallas.··It's not 12·· · · ·Q.· ·And it's not relevant.··Just wondering, like,
13·· ·that far.··It's, like, 20 minutes from here. 13·· ·are you married --
14·· · · ·Q.· ·Gotcha. 14·· · · ·A.· ·No.
15·· · · ·A.· ·Wasn't -- wasn't that far.··Took more time 15·· · · ·Q.· ·-- to somebody else or --
16·· ·finding parking than it did to get over here, almost. 16·· · · ·A.· ·I'm single.··I've known her for a few years.
17·· ·It's okay, though. 17·· ·My lease was over, and rent is so expensive now because
18·· · · ·Q.· ·Does anybody live with you at that Bent Tree 18·· ·of COVID.··She had a two-bedroom, so I just kind of -- I
19·· ·Forest address? 19·· ·meant to stay there for six months, but it's been a
20·· · · ·A.· ·Yeah.··I live with Stephanie Ellis.··She's a 20·· ·little bit longer than what I originally planned.
21·· ·friend. 21·· ·So ...
22·· · · ·Q.· ·And is that the same Stephanie that was with 22·· · · ·Q.· ·All righty.··Have you ever --
23·· ·you on the day -- 23·· · · ·A.· ·Just kind of -- just kind of convenience.
24·· · · ·A.· ·Yes. 24·· ·So ...
25·· · · ·Q.· ·-- of the incident? 25·· · · ·Q.· ·No, that's okay.
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Page 3 (Pages 9-12)
VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER
Page 9 Page 11
·1·· · · · · ··Have you ever been married? ·1·· ·companies will do is they'll buy out companies.··They'll
·2·· · · ·A.· ·No. ·2·· ·own them.··They don't have their name on the -- what do
·3·· · · ·Q.· ·Any children? ·3·· ·you call it?··Like, on the -- they're all franchised.
·4·· · · ·A.· ·No. ·4·· ·So I was working at Nissan of Lewisville, which is where
·5·· · · ·Q.· ·All right.··What is your highest level of ·5·· ·I was working at the time of this.··And then -- that's
·6·· ·education? ·6·· ·where I was employed during the accident.
·7·· · · ·A.· ·Bachelor's degree. ·7·· · · ·Q.· ·Okay.
·8·· · · ·Q.· ·And where did you get that? ·8·· · · ·A.· ·And then after that, so I went over to Clay
·9·· · · ·A.· ·University of North Texas.··I graduated in ·9·· ·Cooley Kia.··It's the same company.··It's just a
10·· ·2012. 10·· ·different -- different location and everything.
11·· · · ·Q.· ·And what was your degree in? 11·· · · ·Q.· ·Understood.··And what did you do for those
12·· · · ·A.· ·Sociology and a minor in marketing. 12·· ·companies?··Were you selling cars?
13·· · · ·Q.· ·All right.··And where did you go to high 13·· · · ·A.· ·I've been in sales.··Sales.
14·· ·school? 14·· · · ·Q.· ·Okay.··And tell me how that works.··Like, you
15·· · · ·A.· ·Frisco High School.··I graduated in 2007. 15·· ·work at a car dealership and you're doing sales.··Do you
16·· · · ·Q.· ·I took the five-year plan to college myself, 16·· ·do anything else there?··Like, do you work parts
17·· ·as well, so I support -- 17·· ·sometimes?
18·· · · ·A.· ·I did. 18·· · · ·A.· ·No.··I do sale -- I'm just doing sales.··I
19·· · · ·Q.· ·I support -- 19·· ·never -- never thought I would do sales, but I started
20·· · · ·A.· ·I went to -- I went to Texas Tech for a year 20·· ·during COVID, and it pays decent, so I just kind of got
21·· ·and wasn't a big fan of Lubbock.··So my mom went to 21·· ·stuck with it.··It wasn't really, like, gee, I want to
22·· ·Texas Tech, so she made me kind of -- kind of forced me 22·· ·go to college and do sales.··It just kind of --
23·· ·to go there for a year.··But ... 23·· · · ·Q.· ·Sure.
24·· · · ·Q.· ·It's all good. 24·· · · ·A.· ·COVID happened.··I got laid off from my
25·· · · ·A.· ·As long as you graduate, it's all that 25·· ·previous job.··And been doing that for, like, three
Page 10 Page 12
·1·· ·matters, right? ·1·· ·years.··Not my ideal job, but just kind of got stuck in
·2·· · · ·Q.· ·Have you ever been in the military? ·2·· ·it.··Right?
·3·· · · ·A.· ·No. ·3·· · · ·Q.· ·What did you do before COVID, like, before you
·4·· · · ·Q.· ·And tell me where you're currently employed. ·4·· ·started doing car sales?
·5·· · · ·A.· ·I am working at a company called Go Luxury ·5·· · · ·A.· ·I was work -- I worked at a mortgage company
·6·· ·Auto Group. ·6·· ·called Mr. Cooper.··I was a loan officer for about three
·7·· · · ·Q.· ·Go what? ·7·· ·years.··That was my first job out of college.··And then
·8·· · · ·A.· ·Go Luxury Auto Group.··It's -- actually, it's ·8·· ·I worked at a credit repair company.··I was the director
·9·· ·kind of -- it's in the Design District, so it's not too ·9·· ·of billing, and I did that for about two and a half
10·· ·far from here. 10·· ·years.··And then -- then COVID happened.··So it was more
11·· · · ·Q.· ·And Go Luxury Auto Group, is that, like, a car 11·· ·of, like, going from, like, finance kind of job and desk
12·· ·dealership? 12·· ·job to sales.··So --
13·· · · ·A.· ·Yeah.··They sell luxury and exotic vehicles. 13·· · · ·Q.· ·How --
14·· · · ·Q.· ·How long have you worked there? 14·· · · ·A.· ·-- a little change of pace.
15·· · · ·A.· ·About a month.··I just started. 15·· · · ·Q.· ·How are you liking that -- that change of
16·· · · ·Q.· ·And what is your title or role there? 16·· ·pace?
17·· · · ·A.· ·Client advisor. 17·· · · ·A.· ·I mean, I'm thinking -- I mean, it's
18·· · · ·Q.· ·And where did you work before Go Luxury? 18·· ·different.··The hours are, honestly, horrible because I
19·· · · ·A.· ·I was working at Clay Cooley Kia in Irving.··I 19·· ·went from working a 40-hour week, like most people, to
20·· ·worked there for about a year. 20·· ·working 50, 60 hours and working every Saturday.··So it
21·· · · ·Q.· ·Okay.··And what about before Clay Cooley Kia? 21·· ·was definitely -- it is different.
22·· · · ·A.· ·I was working at Nissan of Lewisville, which 22·· · · ·Q.· ·All right.··Have you ever been injured on the
23·· ·is -- actually, I was working there at the time of the 23·· ·job in any way?
24·· ·accident.··It's a Clay Cooley company.··Like, it's owned 24·· · · ·A.· ·No.
25·· ·by Clay Cooley, but it doesn't have, like -- what 25·· · · ·Q.· ·Have you ever filed a disability claim of any
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VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER
Page 13 Page 15
·1·· ·kind, like, Social Security Disability, Medicare, ·1·· ·hit-and-run.··My probation is actually over this week,
·2·· ·Medicaid?
Preview
FILED 12/29/2023 4:15 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-22-06343 GARRETT RYDER, § IN THE DISTRICT COURT § Plaintiff, § § v. § 134th JUDICIAL DISTRICT § BOOMERJACK’S ADDISON, LLC, § § § § Defendant. § DALLAS COUNTY, TEXAS DEFENDANT’S TRADITIONAL AND NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Boomerjack’s Addison, LLC (“Defendant” or “Sidecar Social”) and files this, its Traditional and No-Evidence Motions for Summary Judgment pursuant to Rule 166a of the Texas Rules of Civil Procedure. In support of this Motion, Defendant would respectfully show the Court the following: I. FACTUAL BACKGROUND 1. This is a slip and fall case. Plaintiff Garrett Ryder (“Ryder”) allegedly patronized the Boomerjack’s Addison, LLC “Sidecar Social” location in Addison Texas on April 10, 2022. Ryder alleges he fell on the ramp leaving the restaurant and has alleged various injuries. Plaintiff filed his original petition on June 23rd, 2022. Defendant answered on December 5, 2022. This case is currently set for trial January 3rd, 2024 and this is the first trial setting. 1.2 Plaintiff arrived at the Sidecar Social restaurant at approximately 9:34pm and checked out at approximately 10:05pm. On the way out of the restaurant, Plaintiff claims he DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 1 of 17 MOTIONS FOR SUMMARY JUDGMENT slipped and fell on the wooden ramp leading out of the patio area. The ramp in question is pictured below: 1.3 Plaintiff’s original petition claims this ramp was wet due to just being mopped. Setting aside the absurdity of mopping an outdoor wooden ramp, Plaintiff’s deposition testimony is conflicting on this topic: DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 2 of 17 MOTIONS FOR SUMMARY JUDGMENT 1.4 Plaintiff testified that he doesn’t know he slipped because of the water, he assumes so because otherwise he wouldn’t have slipped. Secondly, Plaintiff testified that he DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 3 of 17 MOTIONS FOR SUMMARY JUDGMENT didn’t even see the ramp was wet – he assumes so because the lady was mopping in that other area. 1.5 Plaintiff testified he saw the lady mopping and the yellow commercial mop bucket prior to his fall. 1.6 Additionally, Plaintiff’s friend told a different story. The Addison EMS records state that “Patient’s friend stated he was walking out to the car when the patient slipped in mud, fell, and hit his head on a tree.” DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 4 of 17 MOTIONS FOR SUMMARY JUDGMENT 1.7 There are no trees on the ramp where Plaintiff claims he fell. However, there are trees at the end of the ramp in the parking lot, which is not Defendant’s property. II. SUMMARY OF ARGUMENTS 2.1 Plaintiff’s claims and causes of action against Defendant fail as a matter of law because: 1. Under Texas law, Plaintiff is limited to a premises liability claim; 2. Plaintiff cannot identify any unreasonably dangerous condition. Plaintiff only “assumes” it was water on the ramp because he claims he saw a lady mopping DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 5 of 17 MOTIONS FOR SUMMARY JUDGMENT (mopping an outdoor wooden ramp…) but also testified he never saw the water on the ramp and woke up in the ambulance. 3. Defendants did not have actual or constructive notice of any condition on the ramp. 4. Even if the ramp were wet, Plaintiff saw the employee mopping with a yellow mop bucket and therefore could reasonably expect water to be on the ground around the mop bucket and the lady mopping. Any unreasonably dangerous condition was therefore open and obvious. III. TRADITIONAL MOTION FOR SUMMARY JUDGMENT A. Legal Standard. 3.1 Summary judgment is proper when the movant’s evidence, as a matter of law, either proves all the elements of the movant’s defense or disproves the facts of at least one element of the nonmovant’s claim. Johnson v. Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982); Affordable Motor Co. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App. – Dallas 2011, pet. denied). 3.2 When the movant has established it is entitled to summary judgment as a matter of law, the nonmovant must produce summary judgment evidence that raises a fact issue. Phan Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999). The nonmovant cannot discharge his burden by offering vague allegations and legal conclusions, assertions unsupported by the facts, conclusory allegations, or by offering a mere scintilla of evidence in support of the essential elements of the claims. Butler v. Continental Airlines, Inc., 31 S.W.3d 642, 653 (Tex. App.–Houston [1st Dist.] 2000, pet. denied); Lyons v. Linsey Modern Claims Mgmt., 985 S.W.2d 86, 90 (Tex. App.–El Paso 1998, no pet.). B. Summary Judgment Evidence. DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 6 of 17 MOTIONS FOR SUMMARY JUDGMENT 3.3 In support of its Traditional Motion for Summary Judgment, Defendants have attached the following evidence to this Motion: Exhibit A: Deposition Excerpts from the Deposition of Plaintiff Garret Ryder; and Exhibit B: Excerpts from the Addison EMS Records; and Exhibit C: Photographs of the area where the incident happened. C. Premises Liability Standard. 3.4 Under Texas law, general negligence and premises liability are distinct causes of action, each requiring a distinct duty analysis. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). When the alleged injury is the result of a negligent activity, the injured party must have been injured by, or as a contemporaneous result of, the activity itself rather than a condition created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 263 (Tex. App.—Dallas 2004, no pet.) When the alleged injury is the result of the condition of the premises, the injured party can recover only under a premises liability theory. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, writ denied) (op. on reh’g); Gailey v. Mermaid Pools of El Paso, LLC, 322 S.W.3d 246, 349 (Tex. App.—El Paso 2010, pet. denied). Negligent activity and premises liability are both within the scope of negligence, but negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010). 3.5 It is well settled in Texas that, “Adroit phrasing of the pleadings to encompass design defects, per se negligence or any other theory of negligence does not affect application of DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 7 of 17 MOTIONS FOR SUMMARY JUDGMENT premises liability law.” McDaniel, 887 S.W.2d at 171 (quoting First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 191 (Tex. App.—Corpus Christi 1990, writ denied)); see also Billmeier v. Bridal Shows, Inc., No. 02-08-00314-CV, 2009 WL 1176441, at *4 (Tex. App.— Fort Worth Apr. 30, 2009, no pet.) (mem. op.); Del Lago Partners, Inc. v. Smith is directly on point, and dealt with a fight that occurred on the premises (albeit a very different type of altercation than that which took place in this case). Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010). 3.6 Plaintiff does not allege a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury – instead he complains of alleged nonfeasance, specifically the premises owner failed to maintain the premises; failed to inspect the premises, failed to correct the condition, and failed to inform Plaintiff of the condition. This is a classic premises liability argument, and, ergo, Plaintiff is limited to a premises liability theory. Defendant is therefore entitled to summary judgment as to Plaintiff’s negligence cause of action, which is an attempt to plead around a premises liability cause of action. As shown above, this is directly contrary to Texas law. D. Plaintiff has not Alleged an Unreasonably Dangerous Condition. 3.7 In Plaintiff’s Original Petition, he claims that the unreasonably dangerous condition was water on the ramp from mopping by one of Defendant’s employees. Casting aside for a moment the absurdity of mopping an outdoor wooden ramp, Plaintiff’s testimony is unclear about the actual hazard. 3.8 On page 32 of his deposition, Plaintiff was asked how the ramp got wet, and he said he didn’t know. He admitted he “assumed” it was from the mopping. See Exhibit A, p. 32:21-25. DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 8 of 17 MOTIONS FOR SUMMARY JUDGMENT 3.9 Plaintiff further testified that he wasn’t even sure the ramp was wet, that was another assumption: See Exhibit A, p.33:1-7. See Exhibit A, p.38:18-25. DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 9 of 17 MOTIONS FOR SUMMARY JUDGMENT 3.10 Plaintiff’s testimony makes clear 2 things: 1) he doesn’t know whether the ramp was actually wet or not, he is making an assumption because he slipped; and 2) he doesn’t know whether the employee even mopped the ramp or not, he is making that assumption because he slipped and he couldn’t have slipped if it weren’t wet, ergo it must have been wet. Because Plaintiff doesn’t know what caused his fall, whatever caused his fall cannot be an “unreasonably dangerous condition.” E. Defendants did not have Actual or Constructive Knowledge of the Condition 3.11 To prevail in a premises liability case, a Plaintiff must prove, among other things, that the Defendant had actual or constructive knowledge of some unreasonably dangerous condition on the premises. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). A slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). 3.12 The so-called “time-notice rule” is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). An employee's proximity to a hazard with no evidence indicating how long the hazard was there merely indicates that it was possible for the premises owner to discover the condition, not that the premises owner reasonably should have discovered it. Id. Constructive notice demands a more extensive inquiry. Id. Without some temporal evidence, there is no basis upon which the DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 10 of 17 MOTIONS FOR SUMMARY JUDGMENT factfinder can reasonably assess the opportunity the premises owner had to discover the dangerous condition. 3.13 Plaintiff testified he has no knowledge of how the water got on the ramp, and consequently, Plaintiff would have no knowledge of how long the water had been there. See Exhibit A, p. 32:21-25. 3.14 A Texas Supreme Court case is directly on point. In Wal-Mart Stores, Inc. v. Reece, the Texas Supreme Court addressed a slip and fall case where the plaintiff alleged an employee of the defendant was in close proximity to the spill on which the plaintiff fell and therefore had constructive knowledge of the fall. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). However, the Texas Supreme Court held that “there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition. Otherwise, owners would face strict liability for any dangerous condition on their premises, an approach we have clearly rejected.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). The Court concluded: Reece concedes that she presented no evidence to indicate how long the spill existed before she fell. There was no evidence that the spill was conspicuous—it was not large and consisted of a clear liquid on a light tile floor. There was no evidence that Cloyd saw the spill before Reece fell or that it was there when he approached the counter. There was no evidence indicating when or how the spill came to be on the floor. Nor was there evidence concerning the condition of the spilled liquid that might indicate how long it had been there. Considering the evidence in the light most DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 11 of 17 MOTIONS FOR SUMMARY JUDGMENT favorable to Reece, we hold that there is no evidence to support the conclusion that Wal–Mart had constructive notice of the dangerous condition. Id. 3.15 In the current matter, just as in Wal-Mart, Plaintiff has no evidence of when the water got on the ramp, how long it had been there, or how it got there. Plaintiff admits he has no reason to believe any employee of Defendant knew of the water on the ramp, eliminating actual knowledge as a possibility. 3.16 Based on the holding in Wal-Mart, it would be proper under these nearly identical facts to hold as a matter of law that Defendant did not have constructive or actual notice of the condition on the ramp at the Property. Summary Judgment as to Plaintiff’s premises liability claim would therefore be proper. F. Even if Plaintiff Alleges an Unreasonably Dangerous Condition, it was Open and Obvious 3.17 Revived by the Texas Supreme Court’s landmark decision in Austin v. Kroger Texas, LP, a landowner in Texas does not have a duty to warn of open and obvious dangers, or dangers an invitee knew about. Austin v. Kroger Texas, LP, 465 S.W.3d 193 (Tex. 2015). As explained by a Texas federal judge in Hughes v. Kroger: The Texas Supreme Court recently affirmed that a landowner owes no duty to warn of open and obvious dangers, or dangers the invitee knew about, on its premises. Rather, landowners in Texas owe their invitees the “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” In other words, to impose a duty on a landowner, a plaintiff must prove: (1) there is an unreasonably dangerous condition on the premises; (2) the landowner knew, or should have known, about the dangerous condition; (3) the condition is concealed (i.e., not “open and obvious”); and (4) the plaintiff was not aware of the danger. The existence of a duty is typically a question of law for the Court to decide. Hughes v. Kroger Texas, LP, 2016 WL 3390510 (N.D. Tex. March 4, 2016) (citing to and quoting Austin, 465 S.W.3d at 203). DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 12 of 17 MOTIONS FOR SUMMARY JUDGMENT A Texas landowner owes a duty to its invites to “make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin, 465 S.W.3d at 203. In other words, as explained by another federal judge in Texas applying Texas law: Under Austin v. Kroger, this duty is obviated by a finding that the alleged dangerous condition was open and obvious [or known to the Plaintiff-invitee]. Since there is no need to warn against obvious or known dangers, a landowner generally has no duty to warn of hazards that are open and obvious or known to the invitee.” Harvey v. Carrabba’s Italian Grill, LLC, 2016 WL 3460776, at *4 (E.D. Tex. May 19, 2016) (citing to and quoting Austin, 465 S.W.3d at 204). Here, Plaintiff testified that he saw the employee mopping the floor as he walked towards the ramp. See Exhibit A, p. 32:21-25. Because Plaintiff saw the woman mopping, he would be on notice of the danger of the floor possibly being wet. While Defendant does not admit or concede that any employee was actually mopping an outdoor wooden deck or ramp, Plaintiff alleges he saw this prior to the fall which would make any water on the ground open and obvious to him. That is the entire point of the yellow mop buckets – to catch your attention and let you know the floor might be wet. Accordingly, because Plaintiff has failed to prove through his testimony that there was an unreasonably dangerous condition (he doesn’t even know the ramp was wet!), has failed to prove Defendants had knowledge of said dangerous condition prior to his fall, and has alleged a DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 13 of 17 MOTIONS FOR SUMMARY JUDGMENT condition which would be open and obvious to him (if it existed), summary judgment is proper as to Plaintiff’s premises liability and negligence claims. IV. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT a. Plaintiff’s negligence claim fails as a matter of law; the only potentially cognizable claim is for premises liability Under Texas law, general negligence and premises liability are distinct causes of action, each requiring a distinct duty analysis. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). When the alleged injury is the result of a negligent activity, the injured party must have been injured by, or as a contemporaneous result of, the activity itself rather than a condition created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 263 (Tex. App.—Dallas 2004, no pet.) When the alleged injury is the result of the condition of the premises, the injured party can recover only under a premises liability theory. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, writ denied) (op. on reh’g); Gailey v. Mermaid Pools of El Paso, LLC, 322 S.W.3d 246, 349 (Tex. App.—El Paso 2010, pet. denied). Negligent activity and premises liability are both within the scope of negligence, but negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010). It is well settled in Texas that, “Adroit phrasing of the pleadings to encompass design defects, per se negligence or any other theory of negligence does not affect application of premises liability law.” McDaniel, 887 S.W.2d at 171 (quoting First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 191 (Tex. App.—Corpus Christi 1990, writ denied)); see also DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 14 of 17 MOTIONS FOR SUMMARY JUDGMENT Billmeier v. Bridal Shows, Inc., No. 02-08-00314-CV, 2009 WL 1176441, at *4 (Tex. App.— Fort Worth Apr. 30, 2009, no pet.) (mem. op.); Del Lago Partners, Inc. v. Smith is directly on point, and dealt with a fight that occurred on the premises (albeit a very different type of altercation than that which took place in this case). Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 762 (Tex. 2010). Plaintiff does not allege a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury – instead he complains of alleged nonfeasance, specifically the premises owner failed to maintain the premises; failed to inspect the premises, failed to correct the condition, and failed to inform Plaintiff of the condition. This is a classic premises liability argument, and, ergo, Plaintiff is limited to a premises liability theory. Defendant is therefore entitled to summary judgment as to Plaintiff’s negligence cause of action, which is an attempt to plead around a premises liability cause of action. As shown above, this is directly contrary to Texas law. A. Argument and Authorities – No Evidence Motion 1. No evidence standard of review. “A no evidence summary judgment is the functional equivalent of a pre-trial directed verdict.” Aguirre v. South Tex. Blood and Tissue Center, 2 S.W.3d 454, 456 (Tex. App. San Antonio 1999, writ denied). “The new no-evidence summary judgment shifts the burden of proof to the non-movant to present enough evidence to be entitled to a trial. If the non-movant is unable to provide enough evidence, then the trial court must grant the motion.” Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.] 1999, n.p.h.). The Texas Rules of Civil Procedure provide that a party may move for a summary judgment where there is no evidence of one of the elements of a claim. TEX. R. CIV. P. 166 a(i) provides: DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 15 of 17 MOTIONS FOR SUMMARY JUDGMENT After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. 2. Plaintiff has no evidence of premises liability. To succeed on a premises liability claim, an invitee must prove the following elements: (1) actual or constructive knowledge of a condition on the premises by the owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3) that the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner or occupier's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Plaintiff has no evidence to create an issue of fact on any of these elements. Specifically, Plaintiff has no evidence of actual or constructive knowledge by Boomerjack’s of any condition on the premises, no evidence that the condition posed an unreasonable risk of harm, no evidence that Boomerjack’s did not exercise reasonable care to reduce or eliminate the risk, or that the failure to use such care proximately caused Plaintiff’s injury. Accordingly, summary judgment is proper. V. CONCLUSION In summary, the circumstances alleged are only cognizable under a theory of premises liability, and that claim clearly fails as a matter of law. There is no viable claim for gross negligence absent liability for damages under a negligence theory. Defendant therefore respectfully request that this Court grant this Motion for Summary Judgment in its entirety, enter DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 16 of 17 MOTIONS FOR SUMMARY JUDGMENT a take nothing judgment on all claims asserted by Plaintiff against Defendant, and for such other or further relief to which Defendant may be justly entitled. Respectfully submitted, /s/ Dylan P. Savage DYLAN P. SAVAGE State Bar No. 24075522 MATT R. PICKELMAN State Bar No. 24013328 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, TX 75201 214.871.2100 214.871.2111 Facsimile dsavage@qslwm.com mpickelman@qslwm.com ATTORNEYS FOR DEFENDANT BOOMERJACK’S ADDISON, LLC CERTIFICATE OF SERVICE The undersigned counsel certifies that on the 29th day of December 2023, a true and correct copy of the foregoing was electronically filed with the Court in compliance with the Texas Rules of Civil Procedure. /s/ Dylan P. Savage DYLAN P. SAVAGE DEFENDANT’S TRADITIONAL AND NO-EVIDENCE Page 17 of 17 MOTIONS FOR SUMMARY JUDGMENT EXHIBIT A Page 1 (Pages 1-4) VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER Page 1 Page 3 ·1· NO. DC-22-06343 ·1· TABLE OF CONTENTS ·· ·· PAGE ·2· GARRETT RYDER, § IN THE DISTRICT COURT ·2· ·· Plaintiff, § ·3· § ·· Appearances...................................... 2 · · VS. § DALLAS COUNTY, TEXAS ·3· ·4· § ·· GARRETT WAYNE RYDER · · BOOMERJACK'S ADDISON, LLC, § ·4· ·5· Defendant. § 134TH JUDICIAL DISTRICT ·· ·· Examination by Mr. Savage........................ 4 ·6· ·5· ·· ·· Changes and Signature............................ 91 ·7· ·6· Reporter's Certification......................... 93 ·· ·7· EXHIBITS ·8· ·· ·· NUMBER DESCRIPTION PAGE ·9· ----------------------------------- ·8· ·· ORAL AND VIDEOTAPED DEPOSITION OF ·· Exhibit 1 Photograph 23 10· GARRETT WAYNE RYDER ·9· ·· SEPTEMBER 25, 2023 11· ----------------------------------- ·· Exhibit 2 Photograph 24 ·· 10· 12· ·· Exhibit 3 Photograph 26 ·· 11· 13· ·· ·· Exhibit 4 Photograph 33 14· 12· ·· ·· Exhibit 5 Addison Fire Department 44 15· ORAL AND VIDEOTAPED DEPOSITION OF GARRETT 13· Patient Care Record ·· Exhibit 6 (Skipped) 16· WAYNE RYDER, produced as a witness at the instance of 14· ·· 15· Exhibit 7 (Skipped) 17· the Defendant, and duly sworn, was taken in the 16· Exhibit 8 Google Maps image 66 ·· 17· 18· above-styled and -numbered cause on September 25, 2023, ·· VIDEOS ·· 19· from 10:28 a.m. to 12:38 p.m., before Angela L. Mancuso, 18· ·· ·· BEGINNING OF VIDEO 1............................. 4 20· CSR No. 4514 in and for the State of Texas, reported by 19· BEGINNING OF VIDEO 2............................. 7 ·· ·· BEGINNING OF VIDEO 3............................. 69 21· machine shorthand, at the offices of Quilling, Selander, ·· 20· 22· Lownds, Winslett & Moser, P.C., 2001 Bryan Street, 21· ·· 22· 23· Suite 1800, Dallas, Texas, pursuant to the Texas Rules 23· REPORTER'S NOTE: ·· Quotation marks are used for clarity and do 24· of Civil Procedure, Notice, and any provisions stated on 24· ·· ·· not necessarily reflect a direct quote. 25· the record. 25· Page 2 Page 4 ·1· A P P E A R A N C E S ·1· P R O C E E D I N G S ·2· ·2· (September 25, 2023, 10:28 a.m.) · · FOR THE PLAINTIFF: ·3· ·3· THE VIDEOGRAPHER: We are going on the ·· MS. MALLORY MOXHAM ·4· record, September 25th, 2023, for the deposition of ·4· DASPIT LAW FIRM ·· 1200 Summit Avenue ·5· Garrett Ryder, in a case styled Garrett Ryder versus ·5· Suite 504 ·6· Boomerjack's Addison, LLC, Cause Number DC-22-06343. ·· Fort Worth, Texas 76102 ·6· (888) 273-1045 ·7· The time is now 10:28 a.m. ·· wmorrison@daspitlaw.com ·8· Will counsel please state their appearances ·7· ·8· FOR THE DEFENDANT: ·9· for the record; following, will the court reporter ·9· MR. DYLAN P. SAVAGE 10· please swear in the witness. ·· QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 10· 2001 Bryan Street 11· MS. MOXHAM: My name is Mallory Moxham. ·· Suite 1800 12· I'm located in Dallas County, Texas, and I'm here on 11· Dallas, Texas 75201 ·· (214) 871-2100 13· behalf of the plaintiff. 12· dsavage@qslwm.com 14· MR. SAVAGE: Dylan Savage, on behalf of 13· · · ALSO PRESENT: 15· the Boomerjack's defendants. 14· 16· (Witness sworn by reporter) ·· Ms. Lisa Block, Videographer 15· On The Record Legal Video 17· GARRETT WAYNE RYDER, ·· 6106 Keller Springs 18· having been first duly sworn, testifies as follows: 16· Dallas, Texas 75248 ·· (214) 236-5881 19· EXAMINATION 17· briankjames@ontherecordlv.com 20· BY MR. SAVAGE: 18· 19· 21· Q. All right. Mr. Ryder, my name is Dylan 20· 22· Savage. I'm an attorney, and I represent Boomerjack's 21· 22· 23· in this lawsuit which you filed against them. 23· 24· Do you understand who I am and who I 24· 25· 25· represent? STAUTNER, KLINGHAMER & ASSOCIATES, INC. Page 2 (Pages 5-8) VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER Page 5 Page 7 ·1·· · · ·A.· ·Yes, sir. ·1·· · · ·A.· ·Or I've been living there for, like, three ·2·· · · ·Q.· ·And you understand that the court reporter ·2·· ·years.··So ... ·3·· ·just swore you in, so everything you say today is ·3·· · · ·Q.· ·No.··The Stephanie Ellis, she's the Stephanie ·4·· ·testimony just the same as if you were in a courtroom, ·4·· ·that was with you at Boomerjack's on the day of the ·5·· ·before a judge and a jury.··Do you understand that? ·5·· ·fall? ·6·· · · ·A.· ·I understand. ·6·· · · ·A.· ·No, she was not there, no. ·7·· · · ·Q.· ·Okay.··Now, if you need me to repeat or ·7·· · · ·Q.· ·She was not.··Okay. ·8·· ·rephrase any questions, I mean, sometimes they come out ·8·· · · ·A.· ·But that's where I was -- that's where I was ·9·· ·funny, but they're not intended to be tricky -- ·9·· ·living at. 10·· · · ·A.· ·Yeah. 10·· · · ·Q.· ·Okay.··And how long have you lived with 11·· · · ·Q.· ·-- or anything like that, so if it comes out, 11·· ·Stephanie Ellis? 12·· ·just say, "What did you mean by that?" or "Can you 12·· · · ·A.· ·Probably since 2021, about -- maybe two years, 13·· ·clarify that?"··I'm happy to do it.··Okay? 13·· ·two and a half years, something like that. 14·· · · ·A.· ·Okay. 14·· · · ·Q.· ·And what is her phone number? 15·· · · ·Q.· ·Did you review any documents to prepare for 15·· · · ·A.· ·Let me get it.··One second.··One moment.··Let 16·· ·your deposition today?··And let me clarify.··I'm not 16·· ·me pull it up.··It's (214) 356-7882. 17·· ·asking what your attorney might have said to you. 17·· · · · · · · · ·MR. SAVAGE:··Okay.··And I apologize.··Can 18·· · · ·A.· ·Oh, no, I didn't.··They're going to -- I just 18·· ·we go off the record. 19·· ·pretty much just talked to her, like, a few minutes 19·· · · · · · · · ·THE VIDEOGRAPHER:··Going off record at 20·· ·before, but document-wise, no. 20·· ·10:31. 21·· · · ·Q.· ·Okay.··Any photographs, notes, medical 21·· · · · · · · · ·(Recess from 10:31 a.m. to 10:54 a.m.) 22·· ·records, anything of that nature you reviewed? 22·· · · · · · · · ·THE VIDEOGRAPHER:··We are back on the 23·· · · ·A.· ·No.··I mean, just whatever from the hospital 23·· ·record with Clip 2, at 10:54. 24·· ·or something.··I don't know.··But I haven't seen 24·· ·BY MR. SAVAGE: 25·· ·anything personally. 25·· · · ·Q.· ·All right.··Mr. Ryder, the Bent Tree Forest Page 6 Page 8 ·1·· · · ·Q.· ·Okay.··Can you state your full name on the ·1·· ·Drive address, did you say you've lived there -- for how ·2·· ·record, please. ·2·· ·many years? ·3·· · · ·A.· ·Sure.··Garrett Wayne Ryder. ·3·· · · ·A.· ·About -- about two. ·4·· · · ·Q.· ·Wayne, like W-a-y-n-e? ·4·· · · ·Q.· ·And where did you live before that? ·5·· · · ·A.· ·Yes. ·5·· · · ·A.· ·I was living in Plano. ·6·· · · ·Q.· ·And what is your date of birth, sir? ·6·· · · ·Q.· ·What was the address?··Do you remember? ·7·· · · ·A.· ·11/04/1988. ·7·· · · ·A.· ·I forgot, exactly.··It's off of Hathaway ·8·· · · ·Q.· ·All right.··And what is your current address? ·8·· ·Parkway.··It was an apartment.··I forgot the exact ·9·· · · ·A.· ·5325 Bent Tree Forest Drive, Apartment 1139, ·9·· ·address.··It's been a little while.··But ... 10·· ·Dallas, Texas 75248. 10·· · · ·Q.· ·And you said Stephanie Ellis is just a friend? 11·· · · ·Q.· ·Okay.··And generally where in Dallas is that? 11·· · · ·A.· ·Just a friend, yeah. 12·· · · ·A.· ·It's by the Galleria, North Dallas.··It's not 12·· · · ·Q.· ·And it's not relevant.··Just wondering, like, 13·· ·that far.··It's, like, 20 minutes from here. 13·· ·are you married -- 14·· · · ·Q.· ·Gotcha. 14·· · · ·A.· ·No. 15·· · · ·A.· ·Wasn't -- wasn't that far.··Took more time 15·· · · ·Q.· ·-- to somebody else or -- 16·· ·finding parking than it did to get over here, almost. 16·· · · ·A.· ·I'm single.··I've known her for a few years. 17·· ·It's okay, though. 17·· ·My lease was over, and rent is so expensive now because 18·· · · ·Q.· ·Does anybody live with you at that Bent Tree 18·· ·of COVID.··She had a two-bedroom, so I just kind of -- I 19·· ·Forest address? 19·· ·meant to stay there for six months, but it's been a 20·· · · ·A.· ·Yeah.··I live with Stephanie Ellis.··She's a 20·· ·little bit longer than what I originally planned. 21·· ·friend. 21·· ·So ... 22·· · · ·Q.· ·And is that the same Stephanie that was with 22·· · · ·Q.· ·All righty.··Have you ever -- 23·· ·you on the day -- 23·· · · ·A.· ·Just kind of -- just kind of convenience. 24·· · · ·A.· ·Yes. 24·· ·So ... 25·· · · ·Q.· ·-- of the incident? 25·· · · ·Q.· ·No, that's okay. STAUTNER, KLINGHAMER & ASSOCIATES, INC. Page 3 (Pages 9-12) VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER Page 9 Page 11 ·1·· · · · · ··Have you ever been married? ·1·· ·companies will do is they'll buy out companies.··They'll ·2·· · · ·A.· ·No. ·2·· ·own them.··They don't have their name on the -- what do ·3·· · · ·Q.· ·Any children? ·3·· ·you call it?··Like, on the -- they're all franchised. ·4·· · · ·A.· ·No. ·4·· ·So I was working at Nissan of Lewisville, which is where ·5·· · · ·Q.· ·All right.··What is your highest level of ·5·· ·I was working at the time of this.··And then -- that's ·6·· ·education? ·6·· ·where I was employed during the accident. ·7·· · · ·A.· ·Bachelor's degree. ·7·· · · ·Q.· ·Okay. ·8·· · · ·Q.· ·And where did you get that? ·8·· · · ·A.· ·And then after that, so I went over to Clay ·9·· · · ·A.· ·University of North Texas.··I graduated in ·9·· ·Cooley Kia.··It's the same company.··It's just a 10·· ·2012. 10·· ·different -- different location and everything. 11·· · · ·Q.· ·And what was your degree in? 11·· · · ·Q.· ·Understood.··And what did you do for those 12·· · · ·A.· ·Sociology and a minor in marketing. 12·· ·companies?··Were you selling cars? 13·· · · ·Q.· ·All right.··And where did you go to high 13·· · · ·A.· ·I've been in sales.··Sales. 14·· ·school? 14·· · · ·Q.· ·Okay.··And tell me how that works.··Like, you 15·· · · ·A.· ·Frisco High School.··I graduated in 2007. 15·· ·work at a car dealership and you're doing sales.··Do you 16·· · · ·Q.· ·I took the five-year plan to college myself, 16·· ·do anything else there?··Like, do you work parts 17·· ·as well, so I support -- 17·· ·sometimes? 18·· · · ·A.· ·I did. 18·· · · ·A.· ·No.··I do sale -- I'm just doing sales.··I 19·· · · ·Q.· ·I support -- 19·· ·never -- never thought I would do sales, but I started 20·· · · ·A.· ·I went to -- I went to Texas Tech for a year 20·· ·during COVID, and it pays decent, so I just kind of got 21·· ·and wasn't a big fan of Lubbock.··So my mom went to 21·· ·stuck with it.··It wasn't really, like, gee, I want to 22·· ·Texas Tech, so she made me kind of -- kind of forced me 22·· ·go to college and do sales.··It just kind of -- 23·· ·to go there for a year.··But ... 23·· · · ·Q.· ·Sure. 24·· · · ·Q.· ·It's all good. 24·· · · ·A.· ·COVID happened.··I got laid off from my 25·· · · ·A.· ·As long as you graduate, it's all that 25·· ·previous job.··And been doing that for, like, three Page 10 Page 12 ·1·· ·matters, right? ·1·· ·years.··Not my ideal job, but just kind of got stuck in ·2·· · · ·Q.· ·Have you ever been in the military? ·2·· ·it.··Right? ·3·· · · ·A.· ·No. ·3·· · · ·Q.· ·What did you do before COVID, like, before you ·4·· · · ·Q.· ·And tell me where you're currently employed. ·4·· ·started doing car sales? ·5·· · · ·A.· ·I am working at a company called Go Luxury ·5·· · · ·A.· ·I was work -- I worked at a mortgage company ·6·· ·Auto Group. ·6·· ·called Mr. Cooper.··I was a loan officer for about three ·7·· · · ·Q.· ·Go what? ·7·· ·years.··That was my first job out of college.··And then ·8·· · · ·A.· ·Go Luxury Auto Group.··It's -- actually, it's ·8·· ·I worked at a credit repair company.··I was the director ·9·· ·kind of -- it's in the Design District, so it's not too ·9·· ·of billing, and I did that for about two and a half 10·· ·far from here. 10·· ·years.··And then -- then COVID happened.··So it was more 11·· · · ·Q.· ·And Go Luxury Auto Group, is that, like, a car 11·· ·of, like, going from, like, finance kind of job and desk 12·· ·dealership? 12·· ·job to sales.··So -- 13·· · · ·A.· ·Yeah.··They sell luxury and exotic vehicles. 13·· · · ·Q.· ·How -- 14·· · · ·Q.· ·How long have you worked there? 14·· · · ·A.· ·-- a little change of pace. 15·· · · ·A.· ·About a month.··I just started. 15·· · · ·Q.· ·How are you liking that -- that change of 16·· · · ·Q.· ·And what is your title or role there? 16·· ·pace? 17·· · · ·A.· ·Client advisor. 17·· · · ·A.· ·I mean, I'm thinking -- I mean, it's 18·· · · ·Q.· ·And where did you work before Go Luxury? 18·· ·different.··The hours are, honestly, horrible because I 19·· · · ·A.· ·I was working at Clay Cooley Kia in Irving.··I 19·· ·went from working a 40-hour week, like most people, to 20·· ·worked there for about a year. 20·· ·working 50, 60 hours and working every Saturday.··So it 21·· · · ·Q.· ·Okay.··And what about before Clay Cooley Kia? 21·· ·was definitely -- it is different. 22·· · · ·A.· ·I was working at Nissan of Lewisville, which 22·· · · ·Q.· ·All right.··Have you ever been injured on the 23·· ·is -- actually, I was working there at the time of the 23·· ·job in any way? 24·· ·accident.··It's a Clay Cooley company.··Like, it's owned 24·· · · ·A.· ·No. 25·· ·by Clay Cooley, but it doesn't have, like -- what 25·· · · ·Q.· ·Have you ever filed a disability claim of any STAUTNER, KLINGHAMER & ASSOCIATES, INC. Page 4 (Pages 13-16) VIDEOTAPED ORAL DEPOSITION OF GARRETT WAYNE RYDER Page 13 Page 15 ·1·· ·kind, like, Social Security Disability, Medicare, ·1·· ·hit-and-run.··My probation is actually over this week, ·2·· ·Medicaid?