KEN MOLBERG JUSTICE

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-02079

Before Justices Schenck, Molberg, and Pedersen, III

MEMORANDUM OPINION

KEN MOLBERG JUSTICE

Appellant Laura Lopez, widow of Hernan Murillo, appeals a rule 91a order dismissing claims brought individually, on behalf of Murillo, and as next friend of their four children against appellee Sunstate Equipment Co. LLC. See Tex. R. Civ. P. 91a. For the reasons that follow, we reverse the order and remand the case for further proceedings consistent with this memorandum opinion. See Tex. R. App. P. 47.4.

I. Background

A. Procedural Background

Laura Lopez is the surviving spouse of Hernan Murillo, a licensed electrician, who died as a result of an equipment-related, construction-site accident at a Frito-Lay facility in Irving, Texas, on October 4, 2019. She and Murillo had four children at the time of that incident.

Soon after Murillo's death, Lopez sued Walker Industrial, LLC and Frito-Lay, Inc. individually, on behalf of Murillo, and as next friend to their four children.

On July 31, 2020, she filed a second amended petition adding claims against Sunstate, one of eight defendants named in that pleading. She brought claims against Sunstate for premises liability and wrongful death and survival based on Sunstate's alleged negligence. No exhibits were attached to that pleading. Sunstate answered, asserting a general denial and various affirmative defenses not at issue here.

Fewer than sixty days after Sunstate was served with process, Sunstate also filed a rule 91a motion to dismiss "all of [the] claims against it, including negligence and premises liability," on the ground Lopez had "no basis in law" for her claims against Sunstate. See Tex. R. Civ. P. 91a.1. Sunstate argued Lopez's pleading did not identify an unreasonably dangerous condition, establish a premises liability claim, or establish Sunstate was otherwise negligent. As to negligence, Sunstate argued the facts pled did not establish Sunstate owed Murillo a duty, breached a duty, or caused injury.

Seven days before the rule 91a hearing, Lopez filed a response in opposition to Sunstate's motion. Lopez attached two documents to her response: (1) her second amended petition, which was her live pleading at the time, and (2) a one-page "terms and conditions" form that, by its own terms, is part of a broader equipment rental agreement.

Five days before the hearing, Lopez amended her pleading and filed a third amended petition. No exhibits were attached. In that pleading, Lopez removed the premises liability claim against Sunstate and added two more allegations regarding Sunstate's negligence, increasing the number of Sunstate's allegedly negligent acts from eleven to thirteen, as further detailed below.

Sunstate did not amend its rule 91a motion after Lopez filed her third amended pleading. Less than forty-five days after Sunstate filed its motion, the trial court heard the motion and granted it, dismissing with prejudice Lopez's claims against Sunstate on the same day as the hearing. The signed order stated the court found the motion to be meritorious but did not additionally specify the basis for the court's ruling. The order did not award any attorneys' fees. See Tex. R. Civ. P. 91a.7.

Later, the trial court signed an order severing Lopez's claims against Sunstate from her other claims. Lopez timely appealed the once-interlocutory, now-final order dismissing her claims against Sunstate by filing a notice of appeal within thirty days of the severance order.

B. Pleading Allegations

Murillo was killed when he and two other workers fell approximately thirty feet from a scissor lift Sunstate had rented to another party, Johnson Equipment.

About seven weeks before the incident, Johnson Equipment had submitted a proposal to Frito-Lay for various projects at or near the construction site. The proposal included a bid for "lift rentals." Frito-Lay sent Johnson Equipment a purchase order for this work, thereby entering into a contract with Johnson Equipment.

As a result, on or about September 17, 2019, some two weeks before the incident, Johnson Equipment rented a Genie scissor lift from Sunstate, which Sunstate thereafter delivered to the construction site.

Nine days before the incident-on or about September 25, 2019-Johnson Equipment scheduled a pick-up of the Genie scissor lift with Sunstate. Sunstate did not retrieve the scissor lift from the construction site, leaving it in the possession of Frito-Lay, and possibly others.

At all relevant times, Frito-Lay had one or more written policies requiring the removal of the keys from equipment, such as the lift, when the equipment was not being actively operated. Sunstate and Johnson Equipment knew or should have known of Frito-Lay's requirements.

On the morning of his death, Murillo had been working on electrical projects on the construction site along with coworkers Jose Javier and Francisco Salazar. Salazar was the foreman of their three-man crew. After lunch, the crew was assigned to help with an overhead conduit project. The goal of this work was to pull electrical wires through a two-inch conduit, from one breaker panel to another. The work was needed because other electricians had been unable to pull the wires through the conduit. Apparently, there were no drawings or engineering plans for installing the conduit and electrical conductors, and Murillo and Salazar were sent to "borrow" a scissor lift from Frito-Lay for this work. They secured the Genie lift, which Sunstate had not yet retrieved from the work site. Although the lift was only rated for two people, Salazar allowed all three men onto the lift platform, which they then suspended thirty feet in the air to complete the work.

At the same time, Sammy Deer, an employee of Walker Engineering, was in the process of completing his own nearby tasks in a different lift. Deer failed to properly control his lift and hit the base of the scissor lift occupied by Murillo and the others. The hit to the base of Murillo's scissor lift caused Murillo's lift to tip over and crash onto the concrete below. Murillo died from the injuries sustained in the tip-over. His death was not caused by or contributed to by Murillo, nor did it occur through any fault or negligence on his part, but was proximately caused by the acts, wrongs, and/or omissions of defendants, including Sunstate.

II. Discussion

A. Question Presented

In one issue, Lopez argues the trial court erred in granting Sunstate's rule 91a motion because her petition does not "trigger a clear legal bar" to her negligence claims against Sunstate.

In arguing this point, Lopez addresses several topics she describes as subsidiary issues: whether her pleading identified an unreasonably dangerous condition (a matter Sunstate challenged in its motion), whether Sunstate's motion was sufficiently specific as to the elements of breach and causation, and whether her pleading shows there is no clear legal bar to her allegations that Sunstate owed and breached a duty to Murillo and that such breach proximately caused his death.

In our analysis below, we resolve Lopez's issue and discuss these topics, as well as a preliminary issue neither party raises: whether we may consider, in our de novo review, the "terms and conditions" form Lopez attached to her response to Sunstate's motion and to which both parties refer in their briefing on appeal.

B. Applicable Standards

We review the merits of a rule 91a ruling de novo. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021); In re Farmers Tex. Cty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).

Rule 91a provides a harsh remedy and should be strictly construed. Renate Nixdorf GmbH & Co. KG v. TRA Midland Props., LLC, No. 05-17-00577-CV, 2019 WL 92038, at *10 (Tex. App.-Dallas Jan. 3, 2019, pet. denied) (mem. op.); In re RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.- Dallas June 11, 2018, orig. proceeding) (mem. op.). The rule is not a substitute for special exception practice under rule 91 or summary judgment practice under rule 166a, both of which come with protective features against summary dispositions on the merits. Royale v. Knightvest Mgmt., LLC, No. 05-18-00908-CV, 2019 WL 4126600, at *4 (Tex. App.-Dallas Aug. 30, 2019, no pet.) (mem. op.).

Under rule 91a, except in certain situations not applicable here, a party may move to dismiss a cause of action on the grounds that it has "no basis in law or fact." Tex.R.Civ.P. 91a.1. A cause of action has no basis in law "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. A cause of action has no basis in fact "if no reasonable person could believe the facts pleaded." Id.

A motion to dismiss "must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Tex.R.Civ.P. 91a.2.

We apply a fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action. Thomas v. 462 Thomas Family Props., LP, 559 S.W.3d 634, 639 (Tex. App.-Dallas 2018, pet. denied). In Thomas, we stated:

Our procedural rules merely require that the pleadings provide fair notice of the claim and the relief sought such that the opposing party can prepare a defense. A petition is sufficient if it gives fair and

adequate notice of the facts upon which the pleader bases his claim. Even the omission of an element is not fatal if the cause of action may be reasonably inferred from what is specifically stated. Under this standard, courts assess whether an opposing party can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that might be relevant.

When applying the fair-notice pleading standard to our review in a rule 91a context, "we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." In re RNDC, 2018 WL 2773262, at *1. "If a petition provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied. Similarly, if nothing in the pleading itself triggers a clear legal bar to the claim, then there is a basis in law and the motion should be denied." Id.

In ruling on the rule 91a motion, except as required by rule 91a.7-which does not apply here-the court may not consider evidence and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by rule 59. Tex.R.Civ.P. 91a.6; see Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020) (noting rule 91a.6 expressly limits court's consideration to the pleading of the cause of action with a "narrow class of exhibits" and stating "[r]ule 91a limits the scope of a court's factual, but not legal, inquiry").

When an order granting a rule 91a motion to dismiss does not specify the grounds for dismissal, an appellant seeking reversal of a rule 91a dismissal must negate the validity of each ground on which the trial court could have relied in granting the dismissal. Buholtz v. Gibbs, No. 05-18-00957-CV, 2019 WL 3940973, at *3 (Tex. App.-Dallas Aug. 21, 2019, pet. denied) (mem. op.).

C. Analysis

In her sole issue, Lopez argues the trial court erred in granting Sunstate's rule 91a motion because her pleading does not trigger a clear legal bar to her negligence claims against Sunstate. We address that matter in section II.C.3 below, but first address two other matters discussed in the parties' briefing.

1. Unreasonably Dangerous Condition

In its motion, Sunstate argued Lopez failed to identify in her pleading the "unreasonably dangerous condition" for which Sunstate was allegedly responsible.

Both parties agree this ground is no longer relevant. When Sunstate filed its rule 91a motion, Lopez's live pleading was her second amended petition, a pleading that contained both premises liability and negligence claims against Sunstate. However, by the time of the rule 91a hearing and order, Lopez's live pleading was her third amended petition, a pleading alleging only negligence claims against Sunstate and dropping any claim against Sunstate for premises liability.

While the existence of an unreasonably dangerous condition is necessary in a premises liability claim, it is not in a negligence claim, which requires the existence of a duty, a breach of that duty, and damages proximately caused by that breach.

Because Lopez's live pleading at the time of the rule 91a hearing did not contain a premises liability claim against Sunstate, whether Lopez identified an unreasonably dangerous condition was irrelevant in deciding Sunstate's motion and is irrelevant to our review of that decision in this appeal.

2. "Terms and Conditions" Form

In their arguments on appeal, both Lopez and Sunstate refer to the "terms and conditions" form Lopez attached to her response to Sunstate's motion. We do not consider the form, however, because it was not attached to Lopez's pleading and is not the type of exhibit rule 59 permits. See Tex. R. Civ. P. 91a.6 (court may not consider evidence and must decide rule 91a motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by rule 59); Bethel, 595 S.W.3d at 654 (rule 91a limits scope of court's factual inquiry).

3. Negligence Claims

Lopez argues the trial court erred in granting Sunstate's rule 91a motion because her pleading does not trigger a clear legal bar to her negligence claims against Sunstate. Those claims are premised on allegations Sunstate owed and breached a duty to Murillo and that such breach proximately caused his death.

Before we address that argument, we address a related topic about which she complains: whether, as to breach and causation, Sunstate's motion stated specific reasons for dismissal. See Tex. R. App. P. 91a.2 (stating, in addition to other requirements, rule 91a motion "must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both").

Lopez made no such complaint below. Assuming Lopez was required to and did preserve error on this complaint, it lacks merit, as Sunstate's motion stated, in part, "The facts pled do not support that Sunstate breached [its] duty, or that any purported breach caused . . . damages" and that Lopez "fail[ed] to allege a single act of wrongdoing by Sunstate," and "[did] not allege sufficient facts to establish that [it] breached any duty, or that any action (or breach of duty) by Sunstate caused [Murillo's] injuries."

We turn, finally, to Lopez's argument that the trial court erred in granting Sunstate's motion because her pleading does not trigger a clear legal bar to her negligence claims. To support her position, Lopez relies, in part, on negligence cases from our Court and our sister courts involving unattended vehicles with keys left in the ignition-a situation Lopez analogizes to the facts alleged here. Lopez argues Sunstate had a duty not to leave its scissor lift unattended for nine days, in an operable condition or with the key inserted in violation of Frito-Lay rules, at a location where it was tempting for unauthorized workers to borrow the lift, as Murillo is alleged to have done. Lopez also argues that her pleading does not trigger a clear legal bar to establishing Sunstate's breach of that duty or that such breach proximately caused Murillo's death.

Sunstate, in contrast, insists no duty exists as a matter of law and argues, in part, that the key-in-the-unattended-vehicle cases Lopez cites are distinguishable. Sunstate's arguments regarding Lopez's allegations focus much more heavily on what has not been alleged in her pleading than what has been, and in certain respects, would have us infer facts favoring Sunstate, rather than favoring Lopez, contrary to the applicable standards. For example, Sunstate argues, "Given Frito Lay's alleged policy of removing keys, the only reasonable inference from Lopez's allegations is that the key was not in the scissor lift and that someone on-site that day gave Murillo or Salazar the key." While this is certainly one possible inference, it is not the only reasonable one, nor is it one we are permitted to make. In some respects, the dissent appears to take a similar approach, such as by omitting various allegations from Lopez's pleading and by considering them solely through a lens of negligent ownership and misappropriation, rather than by considering not only those allegations but also other reasonable inferences that might be made from them and by considering the active negligence theory Lopez has alleged.

Viewing the pleading, as we must, according to applicable standards, we conclude that because nothing within Lopez's pleading itself triggers a clear legal bar to Lopez's negligence claim, the claim has a basis in law, and the trial court erred in granting Sunstate's rule 91a motion. See Thomas, 559 S.W.3d at 639 (applicable standards); In re RNDC, 2018 WL 2773262, at *1 (same); see also Hunsucker, 659 S.W.2d at 694 (concluding "issues such as reasonableness and foreseeability are inherently issues for a jury because whether each is precluded as a matter of law depends upon all of the facts and circumstances in each case" and noting "under certain circumstances leaving the keys in the ignition of a vehicle in a locked garage may be negligence, depending upon all of the surrounding facts and circumstances [but] [o]n the other hand, after all of the facts and circumstances have been developed, a court may conclude, as a matter of law, that no negligence existed").

Our decision, of course, reaches only the issue before us, and should not be construed as a comment on how the issues of duty, breach, or causation are to be decided after remand, whether as a matter of law or upon submission to a fact-finder. As some have said in other contexts, "the devil is in the details." After remand, depending on what the details show, the party who prevails here today may be the same as, or different from, the party who ultimately prevails.

III. Conclusion

We sustain Lopez's sole issue, reverse the trial court's order, and remand the case for further proceedings consistent with this opinion.

JUDGMENT

In accordance with this Court's opinion of this date, the trial court's order granting appellee's rule 91a motion is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellant LAURA LOPEZ, INDIVIDUALLY, ON BEHALF OF HERNAN MURILLO, DECEASED, AND AS NEXT FRIEND OF ALFONSO MURILLO, MARCOS MURILLO, ABIGAIL MURILLO, AND KAREN MURILLO recover her costs of this appeal from appellee SUNSTATE EQUIPMENT CO. LLC.

DISSENTING OPINION

DAVID J. SCHENCK JUSTICE

The majority concludes a plaintiff alleged sufficient facts to require reversal of the trial court's judgment dismissing her claims pursuant to rule 91a. The majority reaches its conclusions by relying on the application of the fair-notice pleading standard to its review and holding "nothing in the pleading itself triggers a clear legal bar to the claim." I disagree with our application of the fair-notice pleading standard to our review of a rule 91a decision grounded in the law, but even if I did not and applied that standard to the pleading here, I would instead conclude what the plaintiff alleged in this case demonstrated a lack of legal liability on the part of the defendant such that the trial court properly dismissed her claim as lacking a basis in law. There is no ambiguity in the pleaded facts here. Rather, the question here is simply a legal one: whether the mere act of owning a chattel combined with failing to remove it from the proximity of adults who might misappropriate it and cause injury to themselves amounts to a viable cause of action. It does not. Accordingly, I dissent.

Background

After her husband Murillo died in a tragic construction-site accident involving a scissor lift owned by appellee Sunstate and leased to Johnson Equipment Company ("Johnson Equipment"), appellant Lopez filed suit, asserting claims for negligence and premises liability. According to Lopez, defendant Frito-Lay, Inc. ("Frito-Lay") owned or otherwise controlled the construction site where Murillo was working and where the fatal incident happened. Her petition also alleged that Johnson Equipment had arranged for Sunstate to pick up the scissor lift days before the incident and Sunstate failed to do so, leaving the scissor lift at the construction site and still present on the day of the incident.

Sunstate answered and later filed a rule 91a motion to dismiss, urging Lopez had "no basis in law" for her claims against Sunstate. See Tex. R. Civ. P. 91a.1. Lopez filed her third amended petition before the hearing on the 91a motion and in doing so removed the claim for premises liability. After hearing the motion, the trial court signed an order granting the motion and dismissing with prejudice Lopez's claims against Sunstate on the same day as the hearing. The signed order stated the court found the motion to be meritorious but did not specify the basis for the court's ruling.

Rules 91a and 13 and Special Exceptions

Generally, under rule 91a, a party may move to dismiss a cause of action on the grounds that it has "no basis in law or fact." Tex.R.Civ.P. 91a.1 (emphasis added). A cause of action has no basis in law "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. A cause of action has no basis in fact "if no reasonable person could believe the facts pleaded." Id. Further, except under circumstances not presented here, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted under our rules. See id. 91a.6.

The majority correctly sets forth the standard of review as that of "de novo" and further accurately notes that the rule is not a substitute for special-exception practice under rule 91a. See Royale v. Knightvest Mgmt., LLC, No. 05-18-00908-CV, 2019 WL 4126600, at *4 (Tex. App.-Dallas Aug. 30, 2019, no pet.) (mem. op.). I agree that if a pleading may be corrected by special exceptions, then that is the path the defendant should take, rather than a motion pursuant to rule 91a. Thus, according to the text of the rule, we may draw "reasonable inferences" from the allegations, but may not supply by inference or implication a "defect, omission, obscurity, duplicity, generality, or other insufficiency" to conclude what cause of action the plaintiff has pleaded. See Tex. R. Civ. P. 91 (special exceptions).

Likewise, if, in the face of a rule 91a motion raising a clear legal bar to the claim, the plaintiff wishes to amend the petition to make additional, relevant allegations to support a claim, he might do so. As every plaintiff's petition is accompanied by a mandatory signature attesting to a pre-existing "reasonable inquiry" under rule 13, our rules do not appear to countenance the file-and-hope-for-the-development-of-a-factual-basis-for-a-legally-viable-claim approach as a basis for avoiding dismissal under rule 91a. See In re Alford Chevrolet Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig. proceeding) (proscribing discovery as "fishing expedition or to impose unreasonable discovery expenses on the opposing party").

Where the operative facts are fully alleged but facially invalid to establish liability as a matter of law, rule 91a calls for dismissal. Deferring that dismissal to other, subsequent "harsh" remedies increases the costs, promoting cost-deferred (i.e., nuisance value) settlement in contravention of not only rule 91a and the discovery rules, but also rule 1, which governs the construction of all rules. Rule 1 states: "[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and the state as may be practicable, these rules should be given a liberal construction" Tex R Civ P 1 (emphases added) As our current Chief Justice and others have observed, "The rules are written to achieve this purpose and must be construed accordingly" In re Brookshire Groc Co, 250 S.W.3d 66, 73 (Tex 2008) (orig proceeding) (Hecht, J, dissenting); see also Donwerth v Preston II Chrysler-Dodge, Inc, 775 S.W.2d 634, 643 (Tex 1989) (Ray, J, concurring); Airco, Inc. v. Tijerina, 603 S.W.2d 785, 786 (Tex. 1980) (per curiam).

Discussion

The facts alleged in the petition were that:

On or about September 17, 2019, Johnson Equipment rented a Genie scissor lift, model GS-3246, from Sunstate. Sunstate subsequently delivered the Genie scissor lift to the Construction Site. At all times relevant to the matters herein, Frito-Lay had one or more written policies requiring the removal of the keys from equipment, such as the Genie scissor lift, when such equipment was not being actively operated. On information and belief, Sunstate knew or should have known of Frito-Lay's requirements. On information and belief, Johnson Equipment used the scissor lift on the Construction Site. . . .

On or about September 25, 2019, Johnson Equipment scheduled a pickup of the Genie scissor lift with Sunstate. Sunstate did not retrieve the Genie scissor lift from the Construction Site, leaving same in the possession of Frito-Lay, and possibly others (the "Frito-Lay Scissor Lift").

As the supreme court recently reminded us, when analyzing a negligence claim, we first ask whether the defendant owed the plaintiff a duty. See JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (citing Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015), for elements of negligence, which are duty, breach, causation, and damages). That question is one of law for the court to decide. Otis Eng'g v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). According to the majority, "Lopez argues Sunstate had a duty not to leave its scissor lift unattended for nine days, in an operable condition or with the key inserted in violation of Frito-Lay's rules, at a location where it was tempting for unauthorized workers to borrow the lift, as Murillo is alleged to have done." The theories of liability as described by the majority, and Lopez more particularly in her petition, amount to one of negligent "ownership" or, to be more generous, attractive nuisance.As the attractive-nuisance doctrine is applicable only in premises-liability claims, and Lopez abandoned that claim against Sunstate, we are left with what can only be described as a negligent-ownership claim.

According to Sunstate in its rule 91a motion to dismiss, "The facts pled do not support that Sunstate breached [its] duty, or that any purported breach caused . . . damages" and that Lopez "fail[ed] to allege a single act of wrongdoing by Sunstate" and "[did] not allege sufficient facts to establish that [it] breached any duty, or that any action (or breach of duty) by Sunstate caused [Murillo's] injuries." I agree. What Lopez asserts and the majority now holds is that a party may be liable for negligent ownership and that a duty of care to others arises from merely owning the chattel that could then be operated by some third party to its own or another's detriment.

As part of its recitation of the standard of review, the majority cites a published opinion from this Court for the application of the fair-notice pleading standard to its review of the sufficiency of the pleadings' allegations. See Thomas v. 462 Thomas Family Props., LP, 559 S.W.3d 634, 639 (Tex. App.-Dallas 2018, pet. denied). Although other courts of appeals have applied this standard, the Texas Supreme Court has not yet spoken on whether this application is the correct lens through which to review pleadings dismissed pursuant to rule 91a or precisely how it is to apply. And, I would add my own objection to its application in this context because the text of the rule itself provides the standard of review we should apply. See Tex. R. Civ. P. 91a.1, 91a.6. However, since our panels are bound by prior panel opinions-absent a superseding legislative or constitutional provision or a decision from the U.S. Supreme Court, the Texas Supreme Court, or this Court sitting en banc-I will accede to the reasonableness of applying this standard in this panel opinion. See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022).

Regardless of whether (or how) the fair-notice pleading standard should be applied, Lopez's petition did not contain any allegation of any conduct or cognizable inaction against Sunstate but did confirm that Sunstate owned the scissor lift and leased it to another party with full possessory interest in it. The majority relies on the allegations in the petition that (1) Frito-Lay had one or more written policies requiring the removal of the keys from equipment, such as the scissor lift, when such equipment was not being actively operated; (2) Sunstate knew or should have known of Frito-Lay's requirements; and (3) days before the incident, Johnson Equipment scheduled a pick-up of the scissor lift with Sunstate, and Sunstate did not remove the scissor lift from the construction site, leaving same in the possession of Frito-Lay, and possibly others. But construing pleadings liberally and drawing reasonable inferences cannot permit a reviewing court to read or imply or infer essential, but absent, factual allegations to support a cause of action, especially ones that would not be cognizable as a matter of law. See Kinder Morgan SACROC, LP v. Scurry Cty., 622 S.W.3d 835, 849 (Tex. 2021); see also Tex. R. Civ. P. 91a.1.

The majority relies on a previous decision from this Court to conclude a claim for negligence is sufficiently pleaded by alleging the defendant owned a vehicle, or similar "tempting" item, and left it unattended with the keys in the ignition. In Hunsucker v. Omega Indus., 659 S.W.2d 692, 694 (Tex. App.-Dallas 1983, no writ), this Court reversed and remanded a summary judgment granted to an owner of a truck where there was evidence the owner admitted to owning the truck involved in an alleged accident and that at the time of the accident, the truck was routinely stored with keys in the ignition in a locked building. The Hunsucker court agreed the summary judgment as to negligence per se was correctly granted, but stated, "[U]nder certain circumstances leaving the keys in the ignition of a vehicle in a locked garage may be negligence, depending upon all of the surrounding facts and circumstances." See id. at 698.

Even if I were to agree with the general proposition that an owner of an unattended vehicle left with keys in the ignition could be held liable,those facts are not alleged in this case. The facts here are quite clear. Sunstate leased the scissor lift to Johnson Equipment who had possessory control over the scissor lift at all times, including at the time of the incident. Merely owning a chattel and leasing it to a third party does not create any form of liability as to Sunstate, although the alleged facts could potentially allege liability as to Johnson Equipment. See Humble Oil & Refining Co. v. Martin, 222 S.W.2d 995, 1000 (Tex. 1949) (holding operator of filling station owes to public duty of ordinary care to prevent cars left with it from rolling away and injuring persons or property).

Conclusion

I disagree with the majority's application of rule 91a and would instead conclude Lopez's pleading demonstrated the lack of a legally actionable claim for negligence against Sunstate. Accordingly, I dissent.