Barnes v. Wendy's Intern., Inc.

• Decision Date: 10 June 1993
• Docket Number: No. B14-92-00677-CV,B14-92-00677-CV
• Citation: 857 S.W.2d 728
• Parties: Sandra G. BARNES, Appellant, v. WENDY'S INTERNATIONAL, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 728

857 S.W.2d 728

Sandra G. BARNES, Appellant, v. WENDY'S INTERNATIONAL, INC., Appellee.

No. B14-92-00677-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 10, 1993.

Rehearing Denied July 15, 1993.

James D. Guiffre, Houston, for appellant.

Scott W. MacLaren, Dallas, Bernard T. Klimist, Victoria, for appellee.

Before MURPHY, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from the granting of a summary judgment. In two points of error, appellant asserts that the trial court committed reversible error in granting the summary judgment motion because: 1) a fact issue existed as to whether appellee owed a duty to appellant, and if so, whether that duty was breached, and; 2) there was a question of fact about whether or not appellant was a third party beneficiary of the franchise agreement between appellee and the other defendants in the original suit. We affirm.

Appellant filed suit against appellee for injuries she allegedly sustained as the result of a fall in one of appellee's franchise restaurants in Conroe. Appellant was an employee of the restaurant at the time of her accident, and asserted that she slipped due to an accumulation of water on the floor in the kitchen area of the facility, caused by leaking plumbing fixtures. Also joined in the suit were South Houston Food Corporation, Texokclare, Inc., and Jerry R. Boyd, (Franchisee/lessee), the collective Franchisee and Lessee of appellee. Appellee reserved certain rights in both the franchise and lease agreements between the parties, which appellant claimed created a legal duty to her under both negligence and breach of contract theories. Appellee filed a motion for summary judgment alleging that it owed no duty to appellant under either principle of recovery, because the agreements between the parties placed ownership and control with the franchisee, appellant was the employee of the Franchisee/lessee, not appellee, and that the restaurant was operated by the Franchisee/lessee. The trial court granted appellee's motion for summary judgment.

In point of error one, appellant claims the trial court committed reversible error in granting appellee's summary judgment motion because a genuine issue of material fact exists relative to whether or not appellee owed a duty to appellant, and whether such duty, if any, was breached, thus precluding summary judgment relief.

In a negligence cause of action, the plaintiff must prove that the defendant owed a duty to plaintiff, the defendant breached that duty, the breach was the actual and proximate cause of appellant's injuries, and damages resulted. See Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). It would follow, then, that no legal liability can arise from any alleged negligence where no duty exists. Generally, whether a duty exists is a question of law to be determined by the trial court. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). On the other hand, whether facts giving rise to a duty exist, is a question for the fact finder, and usually cannot be determined by a motion for summary judgment. See Fuqua v. Taylor, 683 S.W.2d 735, 737 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). However, a party is entitled to summary judgment relief as a matter of law upon a showing that there is no genuine issue of material fact as to one or more elements of the plaintiff's cause of action. See Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.).

Appellant contends that certain clauses in the lease agreement between the appellee and the other defendants/franchisee created a duty to her because appellee maintained significant control of the restaurant premises. Specifically, appellant notes language in the agreement pertaining to appellee's right to enter the premises in case of the franchisee's default of the lease, and the agreement of the franchisee/lessee to keep the premises in good condition. Appellant argues that this language created a duty on behalf of appellant to inspect the facility and insure that the franchisee complied with the lease agreement and such duty extended to appellant. We disagree.

In Texas, a landlord is not responsible or liable for any injuries sustained by a tenant or its employees which occur in areas controlled by the tenant, or where the landlord has not otherwise agreed to make repairs. George v. City of Fort Worth, 434 S.W.2d 903, 907 (Tex.App.--Fort Worth 1968, writ ref'd n.r.e.). The lease agreement between appellee and the other defendants in this suit provided, in pertinent part, that it was the

"obligation of the lessee/franchisee to maintain the entire premises including the restaurant and any other improvements now or hereafter existing therein or thereon in good condition ... lessee's obligations to maintain and repair includes ... but is not limited to, the maintenance and repair and/or replacement of the following: the ... floor, ... plumbing systems ..." (emphasis added).

It is undisputed that the alleged injury occurred in the franchise operated by Boyd and the other defendants, excluding appellee. By appellant's own admission, the premises defect which led to her injuries was caused by the leaking plumbing, which clearly was under the control of the lessee/franchisee pursuant to the lease agreement. Furthermore, the agreement provided that the lessee, not appellee, be solely responsible for the repairs of the floor and plumbing.

Appellant further argues that appellee reserved a certain amount of control under the lease agreement which gives rise to a duty to maintain the premises. We interpret the agreement to the contrary. Appellee merely reserved...