Calhoun v. Overdorf
| Decision Date | 30 April 2012 |
| Docket Number | NO. 12-11-00239-CV,12-11-00239-CV |
| Parties | LACEY CALHOUN, APPELLANT v. DAVE OVERBORF AND LORI OVERDORE, APPELLEES |
| Court | Texas Court of Appeals |
This is an appeal from a take nothing summary judgment in a premises liability case. In one issue, Lacey Calhoun contends the trial court erred in rendering summary judgment against her. Because the motion for summary judgment filed by Dave Overdorf and Lori Overdorf did not address Calhoun's allegations of gross negligence, we reverse the trial court's order granting the Overdorfs' motion for summary judgment on Calhoun's gross negligence claim. In all other respects, the summary judgment is affirmed.
The Overdorfs own a bed and breakfast establishment called Southern Stables, which they rent for weddings, receptions, and parties. Southern Stables is located on a farm and includes a house, barn, courtyard, and adjoining pasture. The Overdorfs rented Southern Stables to Rhonda Boyle for her daughter's wedding and wedding reception, which took place on April 18, 2009. The Overdorfs' contract forbade the use of the tractors, utility vehicles, and other motor vehicles located on the premises.
At about 12:00 or 12:30 a.m. of the next day, April 19, the bride and groom told the Overdorfs that the reception was over and that the three or so people remaining were cleaning up. The Overdorfs left Southern Stables and went home for the night. Sometime before the guests arrived, Dave Overdorf had parked a Rhino utility vehicle in front of the house to prevent the guests from driving into a mud hole in or near the driveway. Overdorf did not see anyone using the Rhino when he left between 12:00 and 12:30 a.m. The keys to the Rhino were in the glove box or the cup holder.
Lacey Calhoun went to the Wild Horse Saloon in Lufkin where she remained until the 1:00 a.m. closing time on April 19. As she walked to her car in the parking lot, a friend, Julie Williams, asked if she wanted to go to a party to which she had just been invited. Calhoun testified that she thought Julie Williams had just received word of the party by telephone or text message. She did not know who asked Julie Williams to the party. Calhoun followed Williams's truck to Southern Stables. When they arrived at Southern Stables at approximately 1:15 a.m., they followed two men in a Rhino down the driveway, past the guesthouse, to the party barn where some people remained drinking and talking. She had been there between five and ten minutes when Matt Cargill asked her to go for a ride in the Rhino. Calhoun had not met Cargill before.
Cargill took her in the Rhino up the driveway into the front pasture where he performed a donut. When he saw the beam from a police car's spotlight shining into the pasture, Cargill quickly turned and drove into the backyard of the guesthouse. Calhoun yelled "look out," because she thought he was about to hit her car. Cargill attempted to do a "180" when the Rhino overturned injuring Calhoun.
Cargill was a member of the wedding party and was scheduled to spend the night at Southern Stables. After the accident, however, Cargill called his girlfriend and asked her to drive him home.
Cargill said that others had been driving the Rhino for an hour or so before his short ride with Calhoun. No one told him he could not use the Rhino, and there were no signs on the premises forbidding the Rhino's use.
Before the accident, the Rhino's manufacturer had notified the Overdorfs that the vehicle was subject to rollovers. The manufacturer offered, at no charge, to extend the back axle tostabilize the Rhino to prevent rollovers and to install doors on it to prevent passengers from being ejected. Although they were aware of the manufacturer's offer, the modifications had not been made. The Overdorfs used the Rhino only in work on the farm, and they believed there was no rollover risk in the way they used it. Until this accident, the Rhino had never been used by the guests at Southern Stables.
Calhoun sued the Overdorfs alleging that she was an invitee on their premises and that the injuries she sustained in the Rhino accident were the result of the Overdorfs' negligence. She later amended her petition to include allegations of gross negligence. The Overdorfs filed a traditional motion for summary judgment, which the trial court granted.
In one issue, Calhoun argues that the trial court erred in granting the Overdorfs' traditional motion for summary judgment.
A summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To obtain a traditional summary judgment, a defendant must either negate at least one element of the plaintiff's theory of recovery or must plead and conclusively prove each element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). We review the evidence in the light most favorable to the party against whom summary judgment was rendered. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). We credit evidence that favors the nonmovant if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The movant must establish that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985).
The Overdorfs moved for summary judgment on the ground that Calhoun was a trespasser on the premises at Southern Stables and on the Rhino. Therefore, they maintain the only duty they owed Calhoun was not to injure her willfully, wantonly, or through gross negligence. See Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).
A negligence claim consists of three essential elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Gross negligence includes two elements:
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).
The duty owed by a premise owner or occupier is determined by the status of the complaining party at the time and place of injury. Graham v. Atl. Richfield Co., 848 S.W.2d 747, 751 (Tex. App.-Corpus Christi 1993, writ denied). The question then is whether the complaining party was an invitee, licensee, or trespasser. Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex. Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.).
An invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. Tex. Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex. Civ. App.-Tyler 1964), writ ref'd n.r.e. per curiam, 393 S.W.2d 821 (Tex. 1965). "In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as [no more than] a mere licensee." Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 602 (Tex. 1954). A person may be an invitee as to certain parts of the premises but not as to others. Id. Id.
"A licensee is a person whose entrance upon or use of the premises of another is permitted by the owner under such circumstances that he is not a trespasser but is without any express or implied invitation." Rowland, 620 S.W.2d at 933. He is on the premises bysufferance and not by virtue of any business or contractual relations with, or any enticement, allurement, or inducement to enter being held out to him by the owner or occupant, but merely in his own interest or for his own purposes, benefits, convenience or pleasure. Id.
"A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge." Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (1936) (quoting 45 C.J. 740).
When an invitee or licensee exceeds the limits of the authority provided by the invitation or license, she becomes a trespasser. Brown v. Dellinger, 355 S.W.2d 742, 746 (Tex. Civ. App.-Texarkana 1962, writ ref'd n.r.e.). The test to determine whether a person retains his status as an invitee at the time and place of injury is whether the owner reasonably should have foreseen the presence of someone such as the plaintiff at that particular place on the premises. Amoco Chems. Corp. v. Sutton, 551 S.W.2d 459, 462 (Tex. Civ. App.-Eastland 1977, writ ref'd n.r.e.); see also Triangle Motors of Dallas v. Richmond, 258 S.W.2d 60, 62 (Tex. 1953). Foreseeability is not determined by hindsight, but by what the defendant knew or should...
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