Julio Gonzales v. Austowers LLC D/B/A Crossing Point Shopping Center, 03-19-00557-CV

On July 6, 2017 at ~11:00 p.m., Julio Gonzales fell ~37 inches from what he thought was a curb but was a retaining wall in a shopping-center parking area, fracturing his hip.
Gonzales sued Austowers LLC (Crossing Point Shopping Center) for premises liability, alleging a poorly illuminated, unguarded retaining wall and building-code violations.
The Shopping Center moved for traditional and no-evidence summary judgment, submitting Gonzales’s deposition and an operations-manager affidavit stating the center was under construction, not open, had multiple "Construction Entrance Only" signs, and parking-lot lights were not operational until August 2017.
Gonzales opposed with an affidavit, photos, and a Google Earth image; he said he saw no signs restricting entry and that the wall was not marked or illuminated; the center replied that Gonzales’s affidavit conflicted with earlier statements.
The trial court granted summary judgment for the Shopping Center without specifying grounds; Gonzales appealed, arguing a fact issue that he was a licensee and that the center breached its duty to licensees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Plaintiff's status on the property (licensee vs trespasser)	Gonzales argued he was at least a licensee (had consent or customary access)	Shopping Center argued Gonzales was a trespasser because property was closed/under construction and entry was restricted	Court held Gonzales was a trespasser; evidence did not raise a fact issue of consent
Duty/breach element for no‑evidence motion (gross/wanton negligence)	Gonzales argued the retaining wall was a dangerous condition known to the center and not warned against or illuminated	Shopping Center argued Gonzales offered no evidence of wanton, willful, or gross negligence required for liability to a trespasser	Court held Gonzales failed to produce evidence of the subjective and objective elements of gross/wanton negligence; summary judgment affirmed

Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211 (Tex. 2003) (appellate review and affirmance if any theory presented to trial court is meritorious)
Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (when both no‑evidence and traditional motions filed, review no‑evidence first)
Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) (no‑evidence summary judgment requires nonmovant to produce more than a scintilla of probative evidence)
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (burden shifts to nonmovant to raise fact issues in response to no‑evidence motion)
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017) (duty in premises‑liability cases depends on visitor’s status)
Mayer v. Willowbrook Plaza, Ltd. P’ship, 278 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2009) (distinguishing licensee from trespasser and duty owed)
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (elements of gross negligence: extreme risk and actual subjective awareness)
U‑Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (party cannot be liable for gross negligence if it subjectively believed no risk existed)
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (standards for traditional summary‑judgment burdens)