Banzhaf v. ADT Security

• Decision Date: 07 September 2000
• Docket Number: No. 11-99-00227-CV,11-99-00227-CV
• Citation: 28 S.W.3d 180
• Parties: (Tex.App.-Eastland 2000) Walter H. Banzhaf and M. Rose Banzhaf, Individually and as Representatives of the Estate of Frederick John Banzhaf; Angie King; and Herman's Sporting Goods, Inc., Appellants v. ADT Security Systems Southwest, Inc., Appellee
• Court: Texas Court of Appeals

Page 180

28 S.W.3d 180 (Tex.App.-Eastland 2000)

Walter H. Banzhaf and M. Rose Banzhaf, Individually and as Representatives of the Estate of Frederick John Banzhaf; Angie King; and Herman's Sporting Goods, Inc., Appellants v. ADT Security Systems Southwest, Inc., Appellee

No. 11-99-00227-CV

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

September 7, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Charles W. Mcgarry, Law Offices of Charles W. Mcgarry, Dallas, Kimberly Munson, J. Brantley Saunders, The Barbknecht Firm, Dallas, Malcom Guy Renwick, Renwick & Pierret, Arlington, Randall R. Moore, Tony D. Crabtree, Hyatt, Crabtree & Moore, Dallas, for appellants.

Jeffrey Tillotson, John T. Cox, III, Lynn, Stodghill Melsheimer & Tillotson, Dallas, for appellee.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

OPINION

TERRY McCALL, Justice

Angie King was severely injured, and Frederick John Banzhaf was killed during a robbery of the Herman's Sporting Goods, Inc. (Herman's) store in Richardson.¹ Both were employees of Herman's. The robbery was committed by another Herman's employee and his accomplice. King and the parents of Banzhaf sued ADT Security Systems Southwest, Inc. (ADT), which had provided the security system for Herman's. Plaintiffs alleged negligence, design defect, and violations of the Texas Deceptive Trade Practices - Consumer Protection Act (DTPA), TEX. BUS. & COM. CODE ANN. 17.01 et seq. (Vernon 1987 & Pamph. Supp. 2000). ADT subsequently filed a third-party claim against Herman's, seeking indemnification based upon the written contracts between ADT and Herman's. The trial court granted summary judgment to ADT against plaintiffs and, after a bench trial, granted ADT a judgment against Herman's. We reverse and remand that portion of ADT's summary judgment against the Banzhafs on their DTPA claim because ADT failed to include the Banzhafs in their motion for summary judgment on that claim. We affirm the remainder of ADT's judgment against the plaintiffs and ADT's judgment against Herman's.

Background Facts

The following facts are undisputed. Prior to its liquidation in bankruptcy, Herman's was a nationwide chain of sporting goods stores. Herman's had a national contract with ADT for ADT to install and monitor alarm systems in all of the Herman's stores throughout the country. The national contract set out certain basic alarm services that ADT would provide the various stores, but an individual store could vary those basic services by executing a separate written agreement with ADT. The Richardson store executed a separate agreement with ADT.

Herman's had its own internal department in charge of security, and Herman's selected the alarm services to be used in each store. When negotiating the national contract, ADT offered Herman's the opportunity to contract for any alarm monitoring service that ADT made available. One of the features offered by ADT was a "duress code" feature; however, Herman's expressly refused the duress code feature. The duress code feature allows a designated user of the security system to silently trigger the alarm to indicate that the user is being held hostage. To trigger the alarm, the user enters a special single-digit code, along with his or her own password.

Even after the national contract was signed, Herman's continued to refuse any duress code feature for its new stores.² That policy was in effect at the time of the robbery of the Richardson store. Herman's did select a feature known as the "late opening/closing" feature that ran on a pre-set 14-hour cycle. Upon the expiration of the cycle, Herman's either had to open the store and turn the alarm off or leave the store and turn the system on. If a particular Herman's store needed to have employees remain in the store past the normal 14-hour cycle for inventory or for other purposes, certain authorized Herman's employees could extend the cycle by entering their passcode and the number of hours they wished to extend the cycle. King, as assistant manager of the Richardson store, was authorized to extend the cycle.

The alarm system selected by Herman's for all its stores was designed to be activated only when the store was closed and when all employees had left the premises. ADT did not provide daytime monitoring services or guards to Herman's, and ADT never responded to daytime security matters at Herman's in Richardson.

King, Banzhaf, and one other employee were closing the Richardson store one evening. King had locked the main front door but left a metal gate over the door partly open to allow employees to exit through the door after setting the alarm. Just before the three employees were ready to leave, they were confronted in the store by James Langston, another Herman's employee, who was armed and had an accomplice. Langston asked King for the code to the alarm. King gave Langston her code and explained to him how to extend the store's closing time. Langston extended the closing time. Either Langston or his accomplice then killed Banzhaf and the other employee and tried to kill King. King suffered a blunt force injury to her head and a slashing of her throat. She survived, however, and Langston and his accomplice were caught and convicted.

King's and Banzhafs' Claims

ADT's motion for summary judgment against King and the Banzhafs contained not only a motion for traditional summary judgment under TEX.R.CIV.P. 166a(b) & (c), but also a motion for a "no evidence" summary judgment under TEX.R.CIV.P. 166a(i).³ The motion for traditional summary judgment asserted that ADT owed no duty to King and the Banzhafs, that there was not a design defect or the design defect claim of plaintiffs was barred because the alleged defect was "open and obvious," and that King was not a consumer within the DTPA. ⁴ ADT's motion for a "no evidence" summary judgment asserted that, even if ADT had a duty, there was no evidence that ADT breached that duty and that there was no evidence to support a conclusion that any act or omission of ADT caused King's injuries or Banzhaf's death. In granting summary judgment to ADT, the trial court did not state on what grounds it relied. Therefore, plaintiffs must defeat each summary judgment ground urged by ADT. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex. 1989).

A trial court must grant a motion for a traditional summary judgment if the moving party establishes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A trial court properly grants summary judgment in favor of a defendant if the defendant conclusively establishes all elements of an affirmative defense or conclusively negates at least one element of the plaintiffs claim. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). When reviewing a traditional summary judgment, we take as true evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in favor of the non-movant. American Tobacco Company, Inc. v. Grinnell, supra; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).

When the motion is for a "no evidence" summary judgment, we review only the evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614 (Tex.App. - Eastland, 2000, no pet'n h.). As we do when there is a motion for a traditional summary judgment, we accept as true evidence favorable to the non-movant and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, supra. If the non-movant presents evidence that is more than a scintilla, a no evidence summary judgment is improper. Hight v. Dublin Veterinary Clinic, supra.

1. The Duty Question

Plaintiffs' negligence claim required proof of three elements: a legal duty owed by ADT to them; a breach of that duty; and damages proximately resulting from that breach. Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). ADT's motion for a traditional summary judgment asserted that ADT owed no legal duty to plaintiffs, and ADT presented evidence to negate each duty theory presented by plaintiffs. In their second issue, plaintiffs claim that the trial court erred in granting summary judgment because ADT had a legal duty "to exercise reasonable care in providing security for the persons it was hired to protect"; there is evidence of a breach of the duty; and that breach was a proximate cause of damages to each plaintiff. We need only discuss the duty question.

Plaintiffs advance several theories to support their contention that ADT owed them a duty. They claim that the contracts between Herman's and ADT created a duty to protect employees. Similarly, plaintiffs claim that ADT's "control" of the premises created the duty to protect employees. According to plaintiffs, ADT's duty could also be based on RESTATEMENT (SECOND) OF TORTS 324A (1965) because ADT undertook the providing of security services to Herman's employees. Plaintiffs finally contend that their claim sounds in tort as well as contract; therefore, ADT owed a duty separate and apart from the contracts.

Plaintiffs' claim of a contractual legal duty is premised on an assumption that ADT's being in the security business required it to protect Herman's employees. That premise is too broad. ADT is in the business of providing security services for both property and employees, but it provides those services only pursuant to contracts with its customers. The customer selects the services for which it will pay. The uncontroverted testimony, including that by Herman's director of security, was that the alarm system selected by Herman's, including the late open/close feature, was to protect Herman's...