Jessie Charles Horton v. Walden Marina, 09-15-00491-CV

Background

Horton rented boat slip C-11 at Walden Marina and on Sept. 5, 2011 alleges a wooden board supporting his weight broke as he stepped from the dock to his boat, causing serious shoulder injury.
Horton sued for premises liability, negligence, DTPA violations (later dropped), and breach of implied warranty of suitability; claimed Walden Marina maintained the dock and had repaired decking previously.
Walden Marina moved for traditional and no-evidence summary judgment, arguing it did not control the specific slip decking, lacked actual/constructive knowledge of any defect, the lease contained an "as is" clause, and the implied-warranty claim was barred or inapplicable.
Horton submitted evidence including his affidavit and deposition testimony asserting Walden performed maintenance on marina structures, replaced decking near C-11, and that a prior fall had occurred on C-dock; the trial court struck Horton’s affidavit and granted summary judgment on all claims.
On appeal the Ninth Court reviewed the summary judgments de novo and the affidavit-strike for abuse of discretion, affirmed: it held Horton failed to show Walden had prior actual or constructive knowledge of a latent defect at the C-11 decking and the "as is" lease barred the implied-warranty claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Premises liability — control of premises	Horton: decking was a common area or part of slip; lease didn’t grant him exclusive control, Walden maintained docks, created issue of Walden's control	Walden: did not control the specific C-11 slip decking; lessor generally not liable for leased premises	Court: even assuming control issue, Horton failed to raise fact issue on Walden’s actual/constructive knowledge; summary judgment affirmed
Premises liability — knowledge of defect	Horton: prior fall on C-dock, Walden employees maintained docks, Walden found unsafe condition after accident — shows actual/constructive knowledge	Walden: prior incident occurred elsewhere and did not show same dangerous condition at C-11; no evidence Walden knew of defect at C-11 pre-accident	Court: testimony cited did not create more than scintilla of evidence of prior knowledge of a C-11 defect; no genuine issue of material fact
Breach of implied warranty of suitability — applicability	Horton: implied warranty applies to commercial leases covering marina premises even if tenant not conducting commerce	Walden: warranty doesn’t apply or is barred; slip was covered by an "as is" clause that defeats causation/claim	Court: assuming arguendo warranty could extend, the Slip Rental Agreement’s "as is" clause bars the implied-warranty claim; summary judgment affirmed
Evidentiary ruling — striking Horton's affidavit	Horton: affidavit was competent summary judgment evidence and created fact issues	Walden: moved to strike affidavit as improper	Held: Court did not reach merits of this issue because other grounds dispose; trial court’s striking reviewed for abuse of discretion but appellate court affirmed judgments on other grounds

Key Cases Cited

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (standard of review for traditional summary judgment)
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (no-evidence summary judgment standard)
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (elements of premises liability claim)
Davidow v. Inwood North Professional Group-Phase I, 747 S.W.2d 373 (Tex. 1988) (recognition and meaning of implied warranty of suitability for commercial leases)
Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007) ("as is" clause can defeat implied-warranty causation element)
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (affirmance appropriate if any summary-judgment ground is meritorious)