text:
    Sarah BLANCETT, Appellant, v. LAGNIAPPE VENTURES, INC., Appellee.
    No. 01-04-00258-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 18, 2005.

      D. John Leger, Leger & Burke, P.C., Houston, TX, for Appellant.
    Timothy R. Hightower, Susan C. Stevenson, Hays, McConn, Price & Pickering, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
   OPINION

TERRY JENNINGS, Justice.

Appellant, Sarah Blancett, challenges a summary judgment granted in favor of appellee, Lagniappe Ventures, Inc. (“Lagniappe”), in her premises liability suit. Blancett presents three issues for our review. She contends that an affidavit in support of Lagniappe’s summary judgment motion “fails as summary judgment evidence because it was made by an interested party and cannot be readily rebutted.” Blancett also contends that the trial court erred in granting summary judgment in favor of Lagniappe on the issue of duty, as Lagniappe’s summary judgment motion did not address her claim for injuries caused by Lagniappe’s alleged negligent repairs.

We reverse and remand.

Factual and Procedural Background

In Blancett’s original petition, filed on April 7, 2003, Blancett alleged that, on December 24, 2001, her leg was injured “when she fell on property owned by [Lagniappe] because of its negligence in creating and maintaining an unsafe condition on the stairway of the premises located at 4748 Merwin, Houston, Texas, Harris County.” She further alleged that Lagniappe “is sued under and pursuant to common law and the Texas Premises Liability statutes in one or more of the following particulars” by:(l) “maintaining a dangerous condition in the stairway”; (2) “failing to remove the dangerous condition”; and (3) “failing to warn of the dangerous condition; among other acts and omissions.” In its answer, Lagniappe asserted a general denial.

On September 12, 2003, Lagniappe filed its summary judgment motion, arguing that it was entitled to judgment as a matter of law because Lagniappe owed no duty to Blancett as (1) the “premises in question was leased to Anthony Cheng and Aimee Adams” and, thus, Lagniappe “did not control the premises”; (2) “[Blancett] was an invitee” and Lagniappe “had no actual or constructive knowledge of the alleged premises defect”; and, (3) “[a]s a matter of law, Lagniappe did not owe a duty to warn or to make the condition safe without Blancett first establishing that it had actual or constructive knowledge.” Within its third ground, Lagniappe also asserted that “Blancett cannot not recover under a premises liability theory” because “it had no knowledge nor should have known of any hidden danger inside the unit where the accident occurred” and that “improperly lit stairways are not hidden defects as a matter of law.” In support of its summary judgment motion, Lagniappe attached excerpts of Blancett’s deposition testimony, Blancett’s original petition, and the affidavit of Jon Deal, Lagniappe’s apartment manager.

Thereafter, on December 17, 2003, Blan-cett filed a “supplemental original petition,” in which she further alleged that Lagniappe “[f]ail[ed] to repair or negligently repair[ed] the dangerous condition, among other acts and omissions.” On January 2, 2004, Blancett filed a response to Lagniappe’s summary judgment motion, in which she expressly contended that Lagniappe negligently repaired the handrail in the stairwell. In support of her response, Blancett attached (1) the affidavit of Aimee Adams; (2) the affidavit of Norman Cooper, an engineer who examined the interior stairwell, and a corresponding report; and (3) a portion of Blancett’s deposition testimony. She also objected to the affidavit of Jon Deal because, among other things, she alleged that he was an interested witness whose testimony could not be readily controverted. There is no evidence in the record that Blancett obtained a ruling from the trial court concerning her objections.

On January 7, 2004, Lagniappe filed a reply to Blancett’s response, in which it asserted, among other things, that (1) “Blancett has not presented any evidence indicating a covenant to repair the premises”; (2) “Blancett has no evidence that the lack of a handrail on the bottom steps was concealed from her as a matter of law”; and (3) “Blancett has no evidence that a defect existed on the premises that remained under ... Lagniappe’s control.” In regard to Blancett’s negligent-repair claim, Lagniappe asserted:

Blancett has not attached any evidence indicating that the tenants requested their landlord to add a handrail to the bottom stairs much less covenant to add an additional handrail at the bottom of the stairs. Even if there was such a request, any promise to repair “was merely gratuitous, not made at the time of the lease, and was no part of the original contract. It was without consideration, and could not be enforced.” (Citation omitted). Therefore, Lagniappe, as a matter of law, did not covenant to erect or add a banister at the bottom of the stairway in question; thus, it owed no duty to Blancett, its tenant’s guest.

The trial court, on January 12, 2004, signed an order granting Lagniappe’s motion for summary judgment without specifying the grounds upon which it relied. Blancett then filed a motion for new trial, which was denied.

Objections to Summary Judgment Evidence

Initially, we note that, in her third point of error, Blancett argues that the “[ajffida-vit of [Lagniappe’s] [mjanager, [Jon] Deal, supporting its Motion [f]or Summary Judgment fails as summary judgment evidence because it was made by an interested party and cannot be readily rebutted.” She also argues that Deal’s “[a]ffidavit cannot support the summary judgment” because “the safety defects in Apartment No. 1 are violations of the Building Code of [t]he City of Houston.” Blancett asserts that these codes “have the force of law” and that “Deal, as a representative of the lessor, [was] charged with knowledge of the requirements of the Building Code of [t]he City of Houston regarding stair-rails and the construction of stairs and thus he ha[d] knowledge of the defects in the stairs and handrails by presumption of law.”

To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. See Tex.R. Crv. P. 166a(f); see United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). A summary judgment may be based on the uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, “and could have been readily controverted.” Tex.R. Civ. P. 166a(c). An objection to an affidavit on the grounds that it cannot be readily controverted must be made before the summary judgment is granted or the objection is waived. See Patterson v. Mobiloil Fed. Credit Union, 890 S.W.2d 551, 554 (Tex.App.-Beaumont 1994, no writ). Moreover, a written ruling on such an objection must be obtained from the trial court to preserve error. Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see Harris v. Spires Council of Co-Owners, 981 S.W.2d 892, 897 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

Here, the record shows that Blan-cett, in her response to Lagniappe’s motion, did, in fact, raise her objection that Deal was an interested witness and that his testimony could not be readily controverted. However, the record does not show that Blancett received any ruling on her objection. Furthermore, the record shows that Blancett did not clearly assert a specific objection regarding Deal’s knowledge of the building codes in relation to Deal’s affidavit to the trial court. Accordingly, we hold that Blancett has waived her complaints regarding Deal’s affidavit testimony. Tex.R.App. P. 33.1(a).

We overrule Blancett’s third issue.

Standard of Review

Because the propriety of a summary judgment is a question of law, we review the trial court’s summary judgment decision de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex.R. Civ. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant is taken as true, and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Lawson v. B Four Corp., 888 S.W.2d 31, 33-34 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We may affirm a summary judgment only when the record shows that a movant has disproved at least one element of each of the plaintiffs claims or has established all of the elements of an affirmative defense as to each claim. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Farah, 927 S.W.2d at 670. If the movant establishes a right to summary judgment, the burden shifts to the non-movant to present evidence raising a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

We note, moreover, that a summary-judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-41 (Tex.1993). When a summary judgment does not specify the grounds on which the trial court granted it, the reviewing court will affirm the judgment if any theory included in the motion is meritorious. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

Lessor’s Duty

In her first and second issues, Blancett argues that the trial court erred in granting summary judgment in favor of Lagniappe on the issue of duty, as Lagniappe’s summary judgment motion did not address her claim for injuries caused by Lagniappe’s alleged negligent repairs.

Land owners owe “varying duties of care to visitors on their land, depending on the legal status of the visitor.” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996). The parties do not dispute the fact that Blancett, as Adams’s guest, was Adams’s invitee for purposes of Blancett’s premises liability suit. A land owner generally owes invitees a duty to protect them from not only those risks of which the owner is actually aware but also those risks of which an owner should be aware after reasonable inspection. Id. Here, however, it must be emphasized that Lagniappe was Adams’s landlord.

Generally, a lessor has no duty to tenants or their invitees for dangerous conditions on the leased premises. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996); Palermo v. Bolivar Yacht Basin, Inc., 84 S.W.3d 746, 748 (Tex.App.-Houston [1st Dist.] 2002, no pet.). This rule stems from the notion that a lessor relinquishes possession of the premises to the lessee. Endsley, 926 S.W.2d at 285; Palermo, 84 S.W.3d at 748; see Restatement (Second) of ToRts § 356 cmt. a. (1965). However, Texas courts recognize several exceptions to this general rule. Endsley, 926 S.W.2d at 285; Palermo, 84 S.W.3d at 748. For example, a lessor who conceals defects on the leased premises of which the lessor is aware may be liable. Endsley, 926 S.W.2d at 285 (citing Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d 239, 240 (1941)); Palermo, 84 S.W.3d at 748; see also Restatement (Second) of ToRts § 358 (1965). Additionally, a lessor may be liable for injuries caused by a defect on a portion of the premises that remain under the lessor’s control. Endsley, 926 S.W.2d at 285 (citing Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex.1978)); Palermo, 84 S.W.3d at 748; see also Restatement (Second) of ToRts §§ 360, 361 (1965). Finally, and directly on point in the instant case, a lessor who makes repairs may be liable for injuries resulting from the lessor’s negligence in making those repairs. Endsley, 926 S.W.2d at 285 (citing Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446, 448 (1944)); Palermo, 84 S.W.3d at 748; see also Restatement (Second) of ToRts § 362 (1965). If the landlord agrees to repair tenant-controlled areas, the landlord must use ordinary care in making the repairs. Montelongo v. Goodall, 788 S.W.2d 717, 719 (Tex.App.-Austin 1990, no writ). In circumstances where a lessor owes to its tenant the duty owed to an invitee, this duty of the lessor extends to the tenant’s invited guests. See Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex.1978); Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333, 336-37 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Citing the general rule that a lessor has no duty to tenants or their invitees for dangerous conditions on a leased premises, Lagniappe first argues that the trial court properly granted summary judgment in this case because none of the exceptions to the general rule applies in this case. Second, and alternatively, Lagniappe argues that it had no duty to Blancett because it neither knew nor should have known of any alleged defective condition on the leased premises at or prior to the time of the alleged incident.

In support of its second argument, Lagniappe refers us to the general elements of an invitee’s premises liability claim in which it is alleged that a dangerous condition is known to or discoverable by a possessor of land. To prevail on such a claim, a plaintiff must prove that (1) the land owner had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the land owner failed to exercise reasonable care to reduce or eliminate the risk, and (4) the land owner’s failure to use such care proximately caused the plaintiffs injuries. Motel 6 G.P., Inc., 929 S.W.2d at 3; Restatement (Second) of ToRts § 343 (1965). Lagniappe argues that it should prevail because the summary judgment evidence, primarily the affidavit testimony of Jon Deal, establishes that it had no actual or constructive knowledge of the alleged premises defect in this case. Lagniappe’s argument is misplaced.

As noted above, even if an invitee were to establish the above elements in a claim against a lessor, the lessor would generally not be liable to the invitee for dangerous conditions on the leased premises because the lessor has, in fact, relinquished possession of the premises to a lessee. Endsley, 926 S.W.2d at 285; Palermo, 84 S.W.3d at 748; Restatement (Second) of ToRts § 356 cmt. a. (1965). Here, Blancett, in her supplemental petition, added her claim that Lagniappe was negligent in making repairs to the stairwell — a separate claim based, not on a dangerous condition known to or discoverable by a landowner but, instead, a claim based on a lessor’s negligence in making repairs. Restatement (Second) of ToRts § 362 (1965). The elements of such a claim and the basis of the duty owed are quite different. As provided in section 362 of the Restatement:

A lessor of land who, by purporting to make repairs on the land while it is in the possession of his lessee, or by the negligent manner in which he makes such repairs has, as the lessee neither knows nor should know, made the land more dangerous for use or given it a deceptive appearance of safety, is subject to liability for physical harm caused by the condition to the lessee or to others upon the land with the consent of the lessee or sublessee.

Id.

In support of its primary argument, Lagniappe asserts that “there is no evidence in the record” that a covenant to repair the premises existed or that the tenants requested Lagniappe to add a handrail at the bottom of the stairway. On the other hand, Blancett correctly notes that Lagniappe, in its summary judgment motion, did not address her new claim, which was asserted in her supplemental petition, that Lagniappe negligently repaired the stairway. She argues that because Lagniappe failed to address her negligent-repair claim in its motion, the trial court was “prohibited from concluding that Lagniappe intended for the court to resolve the duty issue involving claims for negligent repair.”

Unaddressed issues or claims cannot be a basis for summary judgment. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam). When a plaintiff amends her pleadings after a defendant has moved for summary judgment, the defendant must ordinarily file an amended motion for summary judgment to be entitled to prevail on the entirety of the plaintiffs case. Smith v. Atl. Richfield Co., 927 S.W.2d 85, 88 (Tex.App.-Houston [1st Dist.] 1996, writ denied). The portion of a final summary judgment that is rendered on the plaintiffs entire case under these circumstances must be reversed because the judgment grants more relief that requested. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001); Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st Dist.] 1999, no pet.). However, an exception applies when the grounds initially asserted in the motion for summary judgment conclusively negate an element that is common to the allegation asserted in the amended pleadings. See Farah, 927 S.W.2d at 671-72; Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502-03 (Tex.App.-Houston [1st Dist.] 1995, no writ).

In this case, after Lagniappe moved for summary judgment, Blancett filed her supplemental original petition, adding the claim that Lagniappe failed to repair or negligently repaired the handrail or stairwell. In its summary judgment motion, Lagniappe provided two reasons why it, as a lessor, owed no duty to Blancett, a tenant’s invitee: (1) Lagniappe had no right of control over the interior stairwell of Adams’s apartment and that (2) it had not concealed a preexisting latent defect. However, Lagniappe did not address the assertion made by Blancett in her supplemental petition that Lagniappe negligently repaired the alleged defect. Moreover, Lagniappe did not amend or supplement its summary judgment motion to address Blancett’s theory that it allegedly failed to repair or negligently repaired the alleged defect.

We note that Lagniappe, in its reply to Blancett’s response, asserted that it had no duty to Blancett because she had provided no evidence of a failure to repair or of a negligent repair. However, claims pleaded after a summary judgment is filed must be addressed by an amended or supplemental motion, not by reply brief. McConnell, 858 S.W.2d at 341 (providing that summary judgment grounds must appear in motion, not in briefs or evidence); Elliott v. Methodist Hosp., 54 S.W.3d 789, 794 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Therefore, we cannot consider the grounds asserted by Lagniappe in its reply.

Furthermore, the exception to this general rule recognized by this court does not apply in this case because the two theories that Lagniappe asserted in its summary judgment motion as to why it owed no duty to Blancett do not conclusively negate Blancett’s assertion in her supplemental petition that Lagniappe allegedly made negligent repairs or failed to repair the alleged defect. As we have discussed above, a summary judgment may only be granted on grounds addressed in the motion. Tex.R. Crv. P. 166a(c); McConnell, 858 S.W.2d at 341. A judgment granting more relief than to which the movant is entitled is subject to reversal. Lehmann, 39 S.W.3d at 200.

Accordingly, because Lagniappe did not move for summary judgment on Blancett’s negligent-repair claim, which, in effect, alleged a separate basis of Lagniappe’s duty to Blancett, we hold that the trial court erred in granting summary judgment in favor of Lagniappe on the issue of duty.

We sustain Blancett’s first and second issues.

Final Judgment

Finally, to the extent that Blaneett argues that the judgment is interlocutory and not final and appealable, we note that it is well-established that, in general, an appeal may be taken only from a final judgment; that is, an appeal may be taken only from a judgment that disposes of all pending parties and claims. Lehmann, 39 S.W.3d at 195. Absent a conventional trial on the merits, a judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at 192-93. The law does not require that a final judgment be in any particular form. Id. at 195. The language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. at 200. If the intent to finally dispose of the case is clear, “then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.” Id. Granting more relief than necessary makes the order reversible but not interlocutory. Id. at 204. Therefore, whether a decree is a final judgment must be determined from its language and the record in the case. Id. at 195.

Here, the trial court’s judgment provides that “[t]his summary judgment disposes of all claims and all parties and is appealable.” Such express language, with “unmistakable clarity,” disposes of all claims and all parties. See id. at 192-93, 206 (providing that a “statement like, ‘This judgment finally disposes of all parties and all claims and is appealable,’ would leave no doubt about the court’s intention”). In this case, the trial court’s judgment granting summary judgment is reversible but not interlocutory. See id. at 204.

Conclusion

We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings in accordance with this opinion.

      . The pictures included as part of the summary judgment evidence show that the apartment contained an interior stairway. The stairway is constructed in such a manner that the bottom three steps are at a 90-degree angle from the remainder of the stairway. In other words, if a person were descending the stairs, she would have to turn 90 degrees to walk down the remaining three steps.

      . In addition to responding to Lagniappe’s motion for summary judgment, Blancett also included several special exceptions in her response. However, Blancett makes no argument on appeal regarding her special exceptions.


source: Caselaw Access Project

author: TIM TAFT, Justice.

license: Public Domain

text:
    CHAVEZ CONSTRUCTION, INC., Appellant, v. Joe D. McNEELY, Appellee.
    No. 01-03-00766-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 25, 2005.

      Jennifer Bruch Hogan, Pillsbury, Winthrop, Saw, Pittman, L.L.P., B. Lee Ware, Ware, Snow, Fogel, Jackson & Greene, Timothy F. Lee, Ware, Snow, Fogel & Jackson, L.L.P., Don R. Riddle, Riddle & Baumgartner, Houston, Mike Johanson, Johanson & Fairless, L.L.P., Sugar Land, for Appellant.
    Richard P. Hogan Jr., Pillsbury, Winthrop, Shaw, Pittman, L.L.P., Micky N. Das, Tyler, Das & Debes, P.C., Houston, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

Appellant, Chavez Construction, Inc. (“Chavez”), appeals from a judgment rendered on a verdict awarding appellee, Joe D. McNeely, damages in his negligence action. We address (1) whether Chavez owed a duty to McNeely; (2) whether Chavez breached a duty owed to McNeely; (3) whether Chavez’s actions constituted a proximate cause of McNeely’s injuries; and (4) whether the trial court abused its discretion in refusing to allow Chavez to cross-examine McNeely by (I) questioning him concerning 49 changes that he made to his oral deposition by way of an errata sheet and (ii) admitting into evidence McNeely’s corresponding original deposition answers, to show how they differed from the changes in the errata sheet. We affirm.

Facts

In April 2000, Chavez was employed on the Victoria Lace Ranch to power-wash fences. MeNeely owned the ranch. To obtain the necessary water for its power-washing machines, Chavez tapped into the waterlines that fed McNeely’s livestock-watering troughs. The troughs were equipped with an automated fill system that maintained the water level in the troughs, making very little noise, so that horses could drink without being frightened. To tap into McNeely’s trough water supply, Chavez would remove the trough’s hose from the nearby spigot and attach its own hose, which would run to a power washer. At the end of each work day, Chavez was supposed to pick up its hoses and to reassemble the trough’s hoses the way in which they had been found.

On a few occasions, in violation of its own safety policy, Chavez failed to reassemble the trough’s watering system and left its own equipment out in the field at the end of the work day. On one occasion, Chavez failed to reassemble the watering system and placed its own hose, while still attached to the spigot, inside the trough. On April 29, 2000, while riding one of his horses on the ranch, MeNeely noticed that the water level in one trough was low. MeNeely assumed that the spigot was merely turned off. MeNeely rode over to the trough, leaned off one side of his horse to turn on the water spigot, and righted himself in the saddle. As the water came on, the loose end of the Chavez hose came out of the trough and either hit or sprayed McNeely’s horse in the face. The horse spooked and bucked MeNeely off. MeNeely sustained serious injuries, leaving him a quadriplegic. MeNeely brought a negligence action against Chavez, and a judgment was rendered in his favor, acknowledging that he was 50 percent con-tributorily negligent.

Duty

A. Inherent Risk

In its first issue, Chavez contends that the trial court should have incorporated an “inherent risk” standard in the charge, instructing that it had no duty to protect MeNeely from the inherent risks of horseback riding and, at most, had only a duty not to act recklessly or intentionally.

To preserve a complaint for appellate review, a party must present a timely request, objection, or motion stating specific grounds for the ruling desired. Tex.R.App. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R.App. P. 33.1(a)(2). Chavez never presented the theory of inherent risk to the trial court. It, therefore, failed to preserve this theory for appeal.

We overrule Chavez’s first issue.

B. Foreseeability

In its second issue, Chavez contends that it owed no legal duty to MeNeely because no evidence supported the conclusion that his injuries were foreseeable.

MeNeely contends that Chavez has failed to preserve its no-duty challenge. No-evidence complaints can be preserved in a motion for directed verdict, motion to disregard, a motion for judgment notwithstanding the verdict, a motion for new trial, or objections to the charge. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex.1992). Chavez properly preserved this challenge for appeal by timely moving for new trial on general no-evidence-of-negligence grounds. See Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 543 (Tex.1998). We thus examine the merits of this complaint.

An appellate court reviews a legal-sufficiency challenge to determine if any evidence of probative value exists to support the jury’s findings. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). That review requires this Court to consider only the evidence and inferences that tend to support the finding of duty and to disregard all evidence and inferences to the contrary. See Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988). Only when the evidence offered to prove a vital fact is so weak as to do no more than create mere suspicion of its existence is the evidence nothing more than “a scintilla” and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

The existence of duty generally is a question of law for the court to decide from the facts surrounding the occurrence in question. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In determining duty, a court should consider “several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Id. Of these factors, foreseeability is the dominant consideration. Id. Since the court in Palsgraf held that “[t]he risk reasonably to be perceived defines the duty to be obeyed,” when determining whether a duty exists, courts have widely embraced the consideration of foreseeability. Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (1928).

A person has a duty to prevent injury to others when he negligently creates a dangerous situation and it reasonably appears or should appear that another may be harmed because of his actions. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex.1995) (reviewing the general principles stated in Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942)). The requirements of foreseeability are (1) “ ‘that the injury be of such a general character as might reasonably have been anticipated’ and (2) “ ‘that the injured party should be so situated with relation to the wrongful act that the injury to him or to one similarly situated might reasonably have been foreseen.’ ” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551 (Tex.1985) (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)). The plaintiff must show that the defendant “should have anticipated the dangers that his negligent act created for others.” Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). In order to establish foreseeability, only the general danger must be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

The evidence at trial, when viewed in the light most favorable to the verdict, shows that the general danger that caused McNeely’s injuries was foreseeable. Chavez’s superintendent, Johnny Hughes, testified that McNeely’s ranch was populated with “mostly horses” at the time that Chavez was employed there and that the horses drank from the troughs. Hughes further testified that he had leaned over on a horse to turn on a spigot “lots of times” and that he knew that anything could spook a horse. Chavez’s employees also knew that McNeely rode his horses around the ranch, checking to see that the ranch was in good condition. An expert witness, Mike Abke, testified that leaning over a horse to turn on a spigot is not an uncommon practice for a rancher. Moreover, Chavez had been warned on occasions before the accident to put away its equipment when it was not in use. Hughes also admitted a general awareness that equipment left out could be dangerous.

Knowing that (1) someone would have to turn the water supply to the trough back on; (2) McNeely rode his horses around the ranch; and (3) it was not an uncommon task for a rancher to lean over off of his horse to turn on a spigot, Chavez should have anticipated that McNeely might attempt to turn on the water to his trough while on or around a horse. A reasonable inference from the testimony that anything could spook a horse is that a horse could be frightened from an unsecured hose whipping around when the water spigot was turned back on. Chavez should have known that a horse could be spooked if someone turned back on the water supply. Therefore, it is foreseeable that some injury could result from Chavez’s leaving its hose in the trough.

The evidence is not so weak as to do no more than create a mere suspicion of the existence of foreseeability. Because more than a scintilla of evidence exists to support the finding of foreseeability, this evidence is not, in legal effect, no evidence. See Kindred, 650 S.W.2d at 63. Accordingly, we hold that the trial court did not err in overruling Chavez’s motion for new trial on the basis of a lack of duty.

We overrule Chavez’s second issue.

Breach

In its third issue, Chavez contends that no evidence exists to show that it breached a duty owed to McNeely. Chavez also properly preserved this challenge by timely moving for a new trial on a general no-evidence-of-negligence ground. See Edward D. Jones & Co., 975 S.W.2d at 543.

Chavez does not contest the fact that it left its hose in the trough and attached to the spigot. Rather, Chavez repackages its foreseeability argument and contends that its acts or omissions did not create an unreasonable risk of injury to a person because a reasonable and prudent construction company could not have foreseen McNeely’s injuries. This argument goes to foreseeability, ie., to duty or causation, not to breach. Moreover, the same facts and inferences that defeated Chavez’s argument with respect to duty defeat that challenge here, as well.

We overrule Chavez’s third issue.

Proximate Cause

In its fourth issue, Chavez argues that there was no evidence supporting the conclusion that its actions were the proximate cause of McNeely’s injuries.

“The question of proximate cause is one of fact particularly within the province of a jury, and a jury finding on proximate cause will be set aside only in the most exceptional circumstances.” Tex. Dep’t of Transp. v. Olson, 980 S.W.2d 890, 893 (Tex.App.-Fort Worth 1998, no pet.). Proximate cause consists of both cause-in-fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). To establish cause-in-fact, or “but for” causation, a party must show that the defendant’s negligence was a substantial factor in bringing about his injury and was a factor without which no harm would have been incurred. Id.; see Ambrosio, 20 S.W.3d at 265. While examining the record to determine if there is sufficient evidence of causation, we must view the evidence in a light that tends to support the finding of causation and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001).

A. Cause-in-Fact

When addressing the issue of cause-in-fact, the court in Union Pump examined the circumstances surrounding the plaintiffs injuries. See Union Pump, 898 S.W.2d at 776. The court determined that the plaintiffs injuries were too remotely connected with Union Pump’s actions or the pump itself to constitute the legal cause of the injuries. Id. In Union Pump, an employee of the company, after attempting to aid in extinguishing a fire, slipped off of a pipe rack while following another employee on an unsafe route out of the scene of the extinguished fire. Id. at 774. The court held that, even if the pump fire was the “but for” cause of the plaintiffs injuries, the fire had been extinguished and “the forces generated by the fire had come to rest when she fell off the pipe rack.” Id. at 776.

Chavez asserts that it only furnished the condition that made McNeely’s injuries possible and that its act was not the cause-in-fact of those injuries. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Appellant relies on Boys Clubs, in which the court stated:

The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries .... [and] justify the conclusion that such injury was the natural and probable result thereof. In other words, even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiffs injuries simply may be too attenuated to constitute legal cause.

Id. (citations omitted).

The present case is distinguishable because it does not present an exceptionally attenuated causation chain. See, e.g., Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.App.-Austin 1990, writ denied) (holding that a convenience store’s sale of beer to an 18-year-old was not the cause in fact of a drunk driver’s fatal car accident because the sale was to the passenger and not to the driver); Tex. Am. Bank v. Boggess, 673 S.W.2d 398, 402 (Tex.App.-Fort Worth 1984, writ dism’d by agr.) (ruling that a bank’s employment of a re-possessor was not the cause-in-fact of the car owner’s injuries because the owner was injured by a person whom the repos-sessor had hired without the bank’s knowledge).

Here, pursuant to Boys Clubs, the evidence does “go further.” Chavez disassembled the trough’s watering system, left its hose in the trough, and turned off the spigot such that somebody would have to turn it back on. Because the purpose of the trough was to provide water for the horses, it was a natural course of events for McNeely to turn on the spigot when he noticed that the trough was low on water. It was equally natural for McNeely to ride over on his horse to turn on the spigot while assuming that the automated fill system was intact because Chavez had been instructed to reassemble the trough’s water supply each time its employees left the ranch. Chavez was aware that McNeely rode his horses and was also aware that it was a common task for a rancher to lean over on a horse to turn on a water spigot. Chavez’s superintendent, Hughes, testified that he had turned on a water spigot while on a horse “lots of times.”

It was also a natural consequence that the hose inside the trough would whip around when the water was turned on and that this could spook a horse present at the trough. Because the evidence does “go further” and establishes that the negligence was not merely the remote cause of the injury, Chavez did not merely “furnish a condition which made the injury possible.” See Boys Clubs, 907 S.W.2d at 477.

Chavez further contends that, even if it had properly reattached the trough’s hose, McNeely’s horse still could have spooked. However, in an expert demonstration, Michael Abke, a cowboy about McNeely’s build, repeatedly leaned off the side of McNeely’s horse and turned on the water spigot without spooking the horse. This evidence supports the conclusion. that McNeely’s horse spooked because the hose either sprayed or hit its face, not because McNeely leaned over the horse’s side to turn on the spigot.

Together, this is some evidence showing that Chavez’s negligence was the cause-in-fact of McNeely’s injuries.

B. Foreseeability

The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger that his or her negligence created. Travis, 830 S.W.2d at 98; see Ambrosio, 20 S.W.3d at 265. Foreseeability, however, “does not require a person to anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence.” Travis, 830 S.W.2d at 98; see Ambrosio, 20 S.W.3d at 265. Only the general danger must be foreseeable, “not the exact sequence of events that produced the harm.” Travis, 830 S.W.2d at 98; see Ambrosio, 20 S.W.3d at 265. “The danger of injury is foreseeable if its ‘general character might reasonably have been anticipated.’ ” Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.Houston [1st Dist.] 1999, pet. denied) (quoting Nixon, 690 S.W.2d at 551). In Castillo, a motel guest sued a security company after being raped by a security guard of the motel from whom she sought help. Id. at 783-84. The Castillo Court concluded that the plaintiffs reliance on the testimony of the security company’s president did not provide the necessary evidence “that the general character of the act in question might reasonably have been anticipated.” Id. at 787. This case is distinguishable from Castillo because the general danger that some injury would result from Chavez’s act of leaving the hose unattached in the trough is foreseeable.

Chavez contends that its negligence was not the proximate cause of McNeely’s injuries because his injuries were not foreseeable. In its appellate brief, Chavez argues that no person could have anticipated that leaving a water hose in a trough could create any danger of personal injury to a human being.

For the same reasons that we have held, based on foreseeability, that the evidence showed that Chavez owed a duty to McNeely, we also hold that some evidence showed that McNeely’s injuries were, in fact, foreseeable.

We overrule appellant’s fourth issue.

Exclusion of Evidence

In its fifth issue, Chavez contends that the trial court erred by refusing to allow Chavez to cross-examine McNeely (1) by questioning him concerning 49 changes that he made to his oral deposition by way of an errata sheet and (2) by admitting into evidence McNeely’s corresponding original deposition answers, to show how they differed from the changes in the errata sheet. The trial court refused to admit the original deposition answers that McNeely had changed and ruled that Chavez could cross-examine McNeely only with his final deposition answers, as corrected by the errata sheet, rather than with his original answers that he later changed.

To challenge exclusion of evidence by the trial court on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof. Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Fletcher v. Minnesota Mining & Mfg. Co., 57 S.W.3d 602, 606 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Otherwise, the party waives its complaint. Id. A trial court may exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403.

This Court reviews a trial court’s decision on whether to admit evidence under an abuse-of-discretion standard. Transcontinental Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 670 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). An appellate court should reverse for an abuse of discretion only if the error “probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1.

Chavez asserts that the excluded evidence and line of questioning was relevant because it went to McNeely’s credibility. Chavez has only partially preserved its challenge because Chavez’s counsel made an offer of proof concerning only three of the deposition changes. See Wade, 961 S.W.2d at 374.

We begin by noting that Chavez’s counsel had already cross-examined McNeely on whether McNeely had changed his deposition testimony concerning prior employment with Chavez, referring, in doing so, to McNeely’s original deposition answer and the fact that McNeely had changed it by errata sheet. Any further evidence of the changed deposition testimony concerning whether McNeely had ever been employed by Chavez was thus cumulative of what was already reflected in the record. A trial court generally does not abuse its discretion by declining to admit merely cumulative evidence. See Tex.R. Evid. 403; Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Moreover, even if the trial court had somehow erred in precluding further cross-examination on this one subject, that error would have been harmless because Chavez had already been able to cross-examine McNeely on it. See Tex. R.App. P. 44.1.

As for the remaining two areas of cross-examination to which Chavez preserved its challenge, we hold that any possible error was harmless. Error is reversible only if it “probably caused the rendition of an improper judgment.” Tex. R.App. P. 44.1. Chavez contends that the alleged error was harmful because Chavez could have used the conflicting answers to attack McNeely’s credibility. However, Chavez’s counsel did impeach McNeely in these two areas: Chavez used McNeely’s revised deposition answers to cross-examine him when McNeely testified at trial somewhat hesitantly or inconsistently with those revised answers. For example, concerning which foot McNeely had in the stirrup when the accident happened, the following cross-examination occurred:

Chavez’s counsel: Now, when you testified on your sworn [revised] answers ..., you said that the horse drug you because you had your right foot in the stirrup, and Pm trying to understand if you went over like just told the jury, how did you get drug with your right foot in the stirrup? ...
McNeely: I don’t know, might have been my left foot in the stirrup or my right foot might not have even been in the stirrup. I might have been imagining that when I — sir, I was unconscious and I was — I just had the worst lick of my life. I can’t remember exactly. I thought that I was being drugged and kicked a lot but maybe I wasn’t, maybe he just stepped on me. Heck, I don’t know.

And concerning whether just the hose had hit the horse, or whether the hose or water could have hit the horse, the following cross-examination occurred after the complained-of ruling:

McNeely: He [the horse] — he—the water hose came up out of the water and hit him upside of the head or the water hit him. I don’t know if the hose hit him or the water hit him and he went bananas.
Chavez’s counsel: Well, when you gave your deposition you were pretty sure that the hose hit him in the face, right?
McNeely: No, I don’t know what my deposition said. I know the water hose or the water itself hit him in the head.
Chavez’s counsel: So you didn’t see the hose going over but you saw it hit the horse in the head, right?
McNeely: I sure did.
Chavez’s counsel: So, are you saying to the ladies and gentlemen of the jury that the hose hit the horse in the face after you had already gotten up on top of the horse?
MeNeely: That’s what I’m saying.

(Emphasis added.)

Finally, the following cross-examination had already occurred, without objection, before the complained-of ruling:

Chavez’s counsel: Then when you made your deposition changes, you remember after your sworn deposition was typed up you made a number of changes to the deposition, right?
MeNeely: I did.
Chavez’s counsel: As a matter of fact I think you made 49 changes, does that sound right?
MeNeely: I don’t know.

Therefore, the jury had already heard, although in general terms, that MeNeely had made “a number of changes” to his original deposition answers.

We overrule Chavez’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

      . .Historically, courts have determined that, although a party may not have directly spooked a horse, the causation chain was not too attenuated to hold a party liable when it indirectly frightened a horse. See Scott v. Shine, 194 S.W. 964, 966, 969 (Tex.Civ.App.-Fort Worth 1917, writ ref'd) (holding that unattended cotton gin exhaust pipe’s emission of loud noise and -steam, which spooked horse, sufficed to sustain negligence claim); see also City of Fort Worth v. Patterson, 196 S.W. 251, 252-53 (Tex.Civ.App.-Fort Worth 1917, no writ) (holding that defendant must be held liable for consequences of negligent act that, in probable and natural course of events, causes injury; there, city negligently permitted deep hole, of which it had notice, to remain on street, and vehicle drawn by horses fell in, causing horses to spook and, subsequently, to cause injury to person on street).

      . In substance, the three changes were as follows:

        First Change

        Question by Counsel for Chavez: "Were you employed by Chavez Construction in April of 2000 before this accident?”

        Answer by McNeely: "Yes.”

        Change by McNeely: “No, I was not employed by them.”

        Second Change

        Answer by McNeely: "But this water hose come out of the water and hit that horse in the face.”

        Change by McNeely: "But this water hose came out of the water in the trough and I think water sprayed the horse in the face or the hose moved in such a way that it spooked the horse.”

        Third Change

        Answer by McNeely: "Started bucking me and threw me off the horse and what I recall it kicked me in the head a couple of times and drug me because I had my foot in the stirrup, in that left stirrup, still caught in it or whatever and partially caught in it and he drug me a pretty good ways.”

        Change by McNeely: "And drug me because I had my foot in the stirrup, in the right stirrup.”
      Although Chavez’s counsel began his discussion with the trial court by mentioning the "49 errata sheet changes,” counsel concluded by stating, "I want to put on the record every errata sheet change that I contend I should be able to put into evidence, the original answers and changed answers so the Court can overrule me and the Court [sic] can make a record.” Counsel then mentioned only the three errata sheet changes, and the original deposition answers, quoted immediately above.