949 F.2d 790 (5th Cir. 1992), 90-8727, Lechuga v. Southern Pacific Transp. Co.

Docket Nº:90-8727
Citation:949 F.2d 790
Party Name:Oscar LECHUGA and Rosantina Lechuga, Plaintiffs-Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant, Reynolds Metals Company, Defendant-Appellee.
Case Date:January 02, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 790

949 F.2d 790 (5th Cir. 1992)

Oscar LECHUGA and Rosantina Lechuga, Plaintiffs-Appellants,

v.

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant,

Reynolds Metals Company, Defendant-Appellee.

No. 90-8727

United States Court of Appeals, Fifth Circuit

January 2, 1992

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Cynthia L. Muniz-Berain, Rodriguez & Muniz-Berain, Eagle Pass, Tex., for plaintiffs-appellants.

Gary Antony Scarzafava, Law Office of Sean P. Martinez, San Antonio, Tex., Javier S. Martinez, Martinez & Downs, Houston, Tex., for Reynolds Metals Co.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, DUHE, and WIENER Circuit Judges.

PER CURIAM:

In this Texas personal injury case, Plaintiffs-Appellants Oscar Lechuga and his wife, Rosantina, filed suit against Southern Pacific Transportation Company as landowner (not a party to this appeal) and Reynolds Metals Company as lessee. The Lechugas appeal from the district court's "take nothing" partial summary judgment against them and in favor of Defendant-Appellee Reynolds. Finding no reversible error, we affirm.

I.

FACTS

At the time of the occurrence giving rise to this case, Mr. Lechuga was an agent with the United States Border Patrol. As a Border Patrol agent assigned to the Eagle

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Pass (Texas) sector, Lechuga's duties included the detection and apprehension of illegal aliens who entered the United States across its border with Mexico.

Reynolds operated a plant near Eagle Pass on land it leased from Southern Pacific Transportation Company (the "property"). The property abuts the Rio Grande River. The plant was a metallurgical mill production plant that processed flourspar to produce calcium flouride. Raw materials from Mexico were brought directly across the Rio Grande by rail, processed, and transported, again by rail, to another Reynolds location in this country. The property is bisected by a railroad track, and a railroad bridge connects the property with Mexico on the opposite side of the river. The bridge has no gates, fences, or barriers and is a favorite illicit "port of entry" for illegal aliens. For this reason, the Border Patrol installed heat sensors near the bridge. The Border Patrol also smoothed dirt roads on the Reynolds property periodically by dragging tires along the roads so that fresh footprints would be apparent.

The plant, which had been closed permanently by the time of Lechuga's injury, comprised three areas. One, the compound area, is the only one of the three that is enclosed by a fence. It includes the mill, offices, warehouse, stockpile area, and several railroad spurs. The second area, adjacent to the first, contains evaporation ponds used in the milling process. The third area is immediately adjacent to the railroad bridge, and it contains settling ponds and reclaim ponds that are connected by pipes and drainage ditches or canals. 1 The canals are about one foot wide and several inches deep. The area is also crisscrossed by numerous dirt roads. Because the plant was in the process of being sold at the time of Lechuga's accident, Reynolds maintained only three employees on the premises.

At about 2:30 a.m. on the morning of his accident, Lechuga and his partner responded to signals from the heat sensors indicating activity near the railroad. Upon reaching the area of the bridge, the agents parked their vehicle and pursued their quarry on foot. The night was very dark. Lechuga's partner used a flashlight but Lechuga did not. The partner, traveling a few steps ahead, negotiated one of the connecting canals without difficulty, but Lechuga tripped and fell, apparently when he stepped on a dirt knoll next to the canal. After the fall, the agents discontinued pursuit.

Lechuga testified in his deposition that he was familiar with the terrain in the area. He was also aware of the existence of the canal over which he fell. He acknowledged that Border Patrol agents made numerous trips onto the Reynolds property because of the high volume of alleged alien foot traffic across the railroad bridge.

II.

PROCEEDINGS

Lechuga and his wife filed this action against Reynolds and Southern Pacific Transportation in a Texas district court claiming that Lechuga was an invitee of Reynolds and was owed a duty of ordinary care. Reynolds and Southern Pacific removed the action to federal court on the basis of diversity jurisdiction. Reynolds and Southern Pacific also filed cross-actions against each other. At close of discovery, Reynolds and Southern Pacific filed separate motions for summary judgment. The district court did not grant Southern Pacific's motion for summary judgment, but did enter summary judgment in favor of Reynolds against the Lechugas, and severed the Reynolds/Southern Pacific cross-actions. The court found that the evidence established that Lechuga was not an invitee but merely a licensee at the time he entered the property, and that as such he was not entitled to a standard of ordinary care; rather Reynolds owed him only a duty not to injure him willfully, wantonly or through gross negligence. The Lechugas did not allege a breach of a duty owed to a licensee. The district court granted

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summary judgment to Reynolds. The Lechugas timely appealed.

III.

STANDARD OF REVIEW

This court reviews the grant of summary judgment motion de novo, using the same criteria used by the district court in the first instance. 2 We "review the evidence and inferences to be drawn therefrom in the light most favorable to the non-moving party." 3 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 4 Fed.R.Civ.P. 56(e) requires that when a proper motion for summary judgment is made, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. 5 The mere existence of an alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." 6 "Material facts" are "facts that might affect the outcome of the suit under the governing law." 7

IV.

ANALYSIS

Lechuga makes two arguments on appeal. First, he contends that the district court erred when it held that he was a licensee and not an invitee on the Reynolds property. Second, he argues that there is a genuine issue of material fact with respect to whether Border Patrol presence on the property conferred a benefit on Reynolds.

  1. Invitee or licensee?

    In Texas' premises liability cases based on negligence, any recovery in tort is predicated on the plaintiff's proving the existence and violation of a legal duty owed to the plaintiff by the defendant. 8 In each instance, the duty owed by a premises owner or occupant (possessor) is determined by the status of the person injured on the premises. 9 This status is a legal question except when sufficient issues of fact exist to warrant submission to a jury. 10 A person who enters the property of another will normally be classified as an invitee, a licensee, or a trespasser. 11

    As stated by the district court, a possessor owes to his invitee a duty of ordinary care that a reasonably prudent person would exercise under the circumstances. 12 The possessor owes a lesser standard to a licensee or a trespasser. The possessor's duty of care to a licensee or trespasser is merely not to injure him willfully, wantonly, or through gross negligence. 13

    There is, however, one exception to the standard of care owed to licensees:

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    when a possessor has knowledge of a dangerous condition on the land, and the licensee does not, the possessor has a duty either to warn the licensee or to make the condition reasonably safe. 14 This exception is not equally applicable to trespassers; the possessor has no such duty to a trespasser.

    Lechuga was not a trespasser because he entered the Reynolds property pursuant to lawful authority. 15 Lechuga must therefore have been either an invitee or a licensee at the time of his injury. The distinction between a licensee and an invitee is important because, unlike a licensee, an invitee enters the premises with the assurance of preparation and reasonable care for his safety and protection while he is there. 16

    The term "invitee" is a legal term of art, more limited than the general sense of the term "invitation." 17 Texas has generally accepted the Restatement of Torts view of "invitee." The Restatement explains that there are two types of invitees:

    (1) An invitee is either a public invitee or a business visitor;

    (2) A public invitee is a person who is invited to enter and remain on land as a member of the public for a purpose for which land is held open...

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