Vance v. Hurst Joint Venture LP
| Decision Date | 11 August 2022 |
| Docket Number | 08-20-00167-CV |
| Citation | 657 S.W.3d 141 |
| Parties | Gretchen VANCE, Appellant, v. HURST JOINT VENTURE LP d/b/a Crosswater Yacht Club, SunTex Ventures LLC, and SunTex Marina Investors LLC., Appellees. |
| Court | Texas Court of Appeals |
ATTORNEY FOR APPELLANT: Steven Samples, Samples Law Group, PLLC, 2605 Airport Freeway, Suite 100, Fort Worth, TX 76111.
ATTORNEY FOR APPELLEE: Sean M. Higgins, Lewis Brisbois Bisgaard & Smith, LLP, 24 Greenway PLaza Suite 1400, Houston, TX 77046-2410.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
JEFF ALLEY, Justice In this personal injury case, the trial court granted a summary judgment in favor of the defendant-premises owner based on the open and obvious nature of the risk that caused the injury. The applicable law is well familiar to this court. The context here is unique, only in that the injury to Appellant Gretchen Vance (Gretchen) occurred as she disembarked from a jet ski onto a dock in a marina that was owned and operated by Appellees Hurst Joint Venture, LP, dba Crosswater Yacht Club, Sunset Marina Investments, LLC, and Sunset Ventures LLC (collectively Hurst) on Lake Travis.1 For the reasons below, we affirm the trial court's judgment dismissing Gretchen's causes of action.
At the time of the accident, Gretchen and her husband Bobby Vance (Bobby) were the owners of a business, known as "Aquafly," which operated a marine sport known as "Hydroflight." The Vances began operating Aquafly in 2012 at the Lakeway Marina on Lake Travis, but due to drought conditions, they moved their operations in 2015 to the Crosswater Yacht Club (CYC) marina, which was owned and operated by Hurst. Under an agreement in which Aquafly rented out a small office at the CYC marina, the Vances had a right to install a dock for conducting their Aquafly operations. Although the parties did not have a signed written lease, CYC's general manager, Roland Adams, considered Aquafly as CYC's tenant.
At the dock, an Aquafly instructor placed a board on the feet of a participant, called the "flyer." The instructor then attached a 45-60 foot hose to the board, which was connected to a jet ski operated by the instructor. The propulsion mechanism from the jet ski was reversed, and after placing the flier in the water, the thrust from the jet ski travelled through the hose causing the flyer to move forward, in essence "towing" the jet ski from the dock into open water. Once in open water, the instructor would increase the thrust from the jet ski to lift the flyer out of the water, allowing them to "fly" above the water, typically for 20 to 30 minutes per session.
Then the instructor decreased the thrust to return the flyer to the water, and the flyer then "towed" the jet ski back to the dock. During the "towing" phase of the operation, the instructor could not independently navigate the jet ski, and instead followed the flyer's lead back to the dock. The flyers were instructed in advance to turn around as they approached the dock, and the instructor would then "throttle down" so the flyer was in a stationary position with their back to the dock. As explained by Gretchen, the instructor gave the flyer a "little bit of throttle [to] literally raise them up out of the water [so they] land on their -- on their butt on the dock." Significant to this appeal, it was then necessary for the instructor to dismount from the jet ski to meet the flyer on the dock to disconnect the hose and remove the board.
Although there is some dispute over how the spot for Aquafly's operations was selected, Aquafly ultimately agreed to the location. It is also undisputed that the Vances designed the layout of the Aquafly operations, choosing to install the dock next to a pre-existing wave attenuation wall, while placing two jet ski lifts on the opposite side of the dock, as depicted below. At all relevant times, the attenuation wall had visible bolts protruding from it, with no protective caps on them.
Gretchen was a certified Hydroflight instructor. She had been trained and certified by Bobby, who was "one of the only people in the US that could actually train other instructors." Gretchen had successfully conducted at least 100 flight sessions at the CYC marina without incident over the two-years before her accident.
On the day of the accident, Gretchen had finished a session with a flyer, who was towing her jet ski back to the dock. At her deposition, Gretchen testified that after placing the flyer on the dock, the jet ski came to rest with the bow (front) of the jet ski facing the main body of the water, and the stern (rear) facing the flier. Gretchen testified that as she was attempting to disembark from the jet ski on the side of the dock next to the attenuation wall, she placed her right hand on the attenuation wall to "support" herself while she stood on the jet ski, preparing to swing her right leg onto the dock. According to Gretchen, as she did so a "very large wake" came up which thrust the jet ski five or six feet forward along the attenuation wall. In the process, her left leg was impaled on one of the protruding bolts in the wall. Because of the severity of her wound, Gretchen was transported by ambulance to a nearby hospital for treatment.
In a lawsuit seeking compensation for her injuries, Gretchen alleged two primary causes of action against Hurst. First, Gretchen brought a claim for premises liability, contending that the existence of the bolts in the attenuation wall constituted an unreasonable danger, and that Hurst had a duty to either warn her about the danger or to take reasonable steps to protect her from the danger (such as placing protective coverings on the bolts). Second, Gretchen brought a claim for negligence, contending that Hurst and their employees were negligent for either failing to warn her of the dangerous nature of the bolts, or for failing to adequately remedy the situation.
Hurst filed a traditional motion for summary judgment, arguing that Gretchen's claim for premises liability failed because the danger from the bolts was open and obvious, and that Hurst therefore owed no duty to warn her about the danger or to otherwise protect her from it. Hurst further argued that an exception to the open and obvious doctrine—the necessary use exception—did not apply as Hurst had no reason to anticipate that Gretchen could not avoid the danger posed from the bolts. And finally, Hurst argued that Gretchen could not bring a claim for negligence, as her only valid claim under these circumstances was for premises liability.
In her response, Gretchen acknowledged that the presence of the exposed bolts on the attenuation wall was open and obvious. She argued, however, that the danger she encountered on the day of her accident stemmed not only from the bolts themselves, but from the "combination" of the exposed bolts and the wake action in the area where the dock was located. Relying on both the declaration of her expert witness, Carl Wolf, and the deposition testimony of CYC's manager, Roland Adams, Gretchen pointed out that it is "common knowledge" in the marina industry that attenuation walls are generally built to prevent waves from entering the inner portion of a marina by deflecting and breaking the waves down before they can enter the marina. And because the CYC marina was not built in a cove and was instead located on the "main lake," both Wolf and Adams agreed that it was necessary to build the attenuation wall to protect the boats that were in slips within the inner marina from wake action originating in the lake. As well, they both agreed that this left the exterior portion of the CYC marina, where Aquafly's operations were located, unprotected and subject to wake action, which could be extreme at times. Wolf further opined that the location was "unreasonably dangerous" considering the wake action and the dock's proximity to the unprotected bolts protruding from the attenuation wall.
Gretchen then argued that the unreasonable danger caused by the wake action was concealed from her, primarily relying on her "lack of knowledge of marina operations," and her lack of knowledge that the attenuation wall was constructed to deflect or transmit waves back into the exterior portion of the marina where Aquafly was located, thereby causing an increase in wake action in that area. And she argued that Hurst, with their superior knowledge of such operations, were aware or should have been aware of the dangerous nature of the location, and in turn, should have foreseen the possibility that she might be injured while operating in that location.
As for her negligence claim, Gretchen set forth a new theory not found in her petition. She argued that Hurst was responsible for choosing the location for Aquafly's operations and did so in a negligent manner by "selecting an unsuitable location containing a latent defect," i.e., in an area exposed to "unrepressed waves." And she argued that her negligence claim was distinct from, and broader than, her claim for premises liability. In her view, it was negligent to allow Aquafly to operate in the exterior marina—even in the absence of the protruding bolts on the attenuation wall—as it exposed her to wave activity that could have thrown her "in the water causing her to drown or [thrown] her onto the dock causing impact injuries."
The district court granted Hurst's summary judgment motion and dismissed Gretchen's lawsuit. This appeal followed.
On appeal, Gretchen contends that the trial court erred in granting Hurst's motion, contending that there were two questions of fact remaining on her premises liability claim: (1) whether the danger on the premises was open and obvious, and (2) whether the necessary use exception applied to her case. In addition, she contends that a question of fact existed on the issue of whether Hurst was...
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