Callahan v. Vitesse Aviation Servs., LLC

• Decision Date: 29 March 2013
• Docket Number: No. 05–11–00914–CV.,05–11–00914–CV.
• Parties: Daniel J. CALLAHAN, Appellant, v. VITESSE AVIATION SERVICES, LLC, Appellee.
• Court: Texas Court of Appeals

397 S.W.3d 342

Daniel J. CALLAHAN, Appellant,
v.
VITESSE AVIATION SERVICES, LLC, Appellee.

No. 05–11–00914–CV.

Court of Appeals of Texas,
Dallas.

March 29, 2013.

[397 S.W.3d 345]

Jeffrey W. Hightower Jr., Hightower Angelley LLP, Dallas, TX, Jill A. Thomas, Callahan & Blaine, APLC, Santa Ana, CA, for Appellant.

Michael Ross Cunningham, Rose Walker, L.L.P., Dallas, TX, Bryan Rose, Steven Dominic Sanfelippo, Tammy Cole, Dallas, TX, for Appellee.

Before Justices LANG–MIERS, MYERS, and RICHTER.¹

OPINION
Opinion By Justice MYERS.

This appeal arises from a premises liability lawsuit brought by appellant Daniel J. Callahan against appellee Vitesse Aviation Services, LLC. In four issues, Callahan contends the trial court erred by granting Vitesse's motion for summary judgment. For the following reasons, we affirm in part and reverse and remand in part.

Background and Procedural History

Vitesse leased a private terminal at Dallas Love Field Airport from which it operated a facility for private aircraft. On January 27, 2009, Callahan, an attorney from California, flew in a private jet to Dallas, Texas, to attend a deposition. The jet landed at Love Field and was stored and refueled at Vitesse's facility. On the night of January 27, an ice storm hit the Dallas area. On the afternoon of January 28, as he was walking to the jet for the return flight to California, Callahan slipped and fell on a patch of ice.

In April of 2010, Callahan brought a premises liability lawsuit against Vitesse for injuries arising out of the slip and fall that occurred at Love Field. On December 10, 2010, Vitesse filed a motion for

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summary judgment or, in the alternative, for partial summary judgment. The motion was based on the premises liability claim alleged in Callahan's first amended petition, which was filed several months before Vitesse's motion for summary judgment. On April 4, 2011, Callahan filed a response to Vitesse's motion for summary judgment. The response included Callahan's fifth amended petition, also filed on April 4, 2011, that added negligence per se claims based on alleged violations of the Code of Federal Regulations or, alternatively, the Dallas City Code. Callahan also moved to strike the affidavit of David Peaper—the general manager of Vitesse—that was offered in support of Vitesse's motion for summary judgment.

The motion for summary judgment was heard on April 11, 2011.² The trial court granted Callahan's motion to strike Peaper's affidavit, ruling it could not be considered as summary judgment evidence. On April 26, the trial court granted Vitesse's summary judgment motion and dismissed Callahan's causes of action with prejudice. The court's order does not specifically refer to any of Callahan's claims.³ Callahan subsequently brought this appeal.

Discussion

Callahan raises four issues in this appeal: (1) the trial court erred by granting summary judgment because the movant, Vitesse, failed to negate the duty element of Callahan's premises liability claim in that it provided no evidence Callahan slipped and fell on naturally-occurring ice; (2) the trial court erred by applying the natural-accumulation rule without considering the “unique facts of this case, including that this slip and fall occurred on a secure airport tarmac”; (3) the court erred by granting summary judgment because Vitesse was required by contract and federal aviation regulations to remove snow and ice from the tarmac; (4) the trial court erred by granting summary judgment because the summary judgment motion did not address Callahan's negligence per se claims.

Standard of Review

We review de novo the trial court's summary judgment. Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007); Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex.App.-Dallas 2012, no pet.). When reviewing a traditional summary judgment granted in favor of the defendant, we determine whether the defendant conclusively disproved at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Beesley, 358 S.W.3d at 418. The movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994). In deciding whether a disputed material fact issue exists precluding summary judgment, we must take evidence favorable to the non-movant as true, and we must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Sysco Food Servs., 890 S.W.2d at 800. When, as in this case, the court's

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order granting summary judgment does not specify the basis for the ruling, we will affirm the summary judgment if any of the theories presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

Objections to the Summary Judgment Evidence

We first address Callahan's contention that, because the only summary judgment evidence submitted by Vitesse—the affidavit of David Peaper, Vitesse's general manager—was struck by the trial court, the court should have denied the motion for summary judgment altogether because Vitesse failed to meet its burden of proof. Rule 166a(c) of the rules of civil procedure provides that the summary judgment record includes evidence attached either to the motion or the response. Am. Bd. of Obstetrics & Gynecology, Inc. v. Yoonessi, 286 S.W.3d 624, 627 (Tex.App.-Dallas 2009, pet. denied). “The proper scope for a trial court's review of the evidence for a summary judgment encompasses all evidence on file at the time of the hearing or filed after the hearing and before judgment with permission of the court.” Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 503 (Tex.App.-Houston [1st Dist.] 1995, no writ); see also Wythe II Corp. v. Stone, 342 S.W.3d 96, 112 (Tex.App.-Beaumont 2011, pet. denied); Am. Bd. of Obstetrics & Gynecology, 286 S.W.3d at 627;S.W. Prop. Trust, Inc. v. Dallas Cnty. Flood Control Dist. No. 1, 136 S.W.3d 1, 6 (Tex.App.-Dallas 2001, no pet.); Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995). Although Vitesse's summary judgment evidence was struck by the court, the evidence provided in Callahan's response to Vitesse's motion was proper summary judgment evidence on which both parties could rely, and the trial court could consider this evidence in making its summary judgment ruling. See Am. Bd. of Obstetrics & Gynecology, 286 S.W.3d at 627. Having therefore determined what evidence the court could consider with respect to the motion for summary judgment, we turn our attention to whether that evidence conclusively established Vitesse's entitlement to summary judgment.

Callahan's Claims

Callahan's first amended petition, which was the pleading on file when Vitesse moved for summary judgment, alleged the following negligence/premises liability cause of action:

As a common carrier in Texas, Defendant owed Plaintiff a duty of higher care. Defendant should have taken steps or additional steps to clear ice from the areas of passenger traffic. Its failure to do so constitutes negligence that proximately caused injury to Plaintiff. The following list is non-exclusive, but Defendant was negligent in the following ways:

1. Defendant negligently maintained the passenger walking areas.

2. Defendant negligently failed to remove ice and other hazards, rendering the area unsafe for passenger foot traffic.

3. Defendant failed to properly inspect its premises.

4. Defendant failed to properly warn passengers utilizing its fixed base operation/aircraft terminal.

After Vitesse moved for summary judgment, Callahan amended its pleadings four times. Callahan's most recent or “live” pleading, the fifth amended petition, alleged four separate counts. Count one, titled “Negligence (Premises Liability and Negligent Activity),” reads as follows:

Defendant had obligations to invitee Plaintiff at common law, had obligations

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to him arising from its lease with the City of Dallas, had obligations to him arising from the Code of Federal Regulations, and, alternatively, had obligations under the Dallas City Code

Defendant should have warned Plaintiff to take steps or additional steps to clear ice from areas of passenger traffic. Its failure to do so constitutes negligence that proximately caused injury to Plaintiff. The following list is non-exhaustive, but Defendant was negligent in the following ways:

1. Defendant negligently maintained its tarmac.

2. Defendant negligently failed to remove ice and other hazards, rendering the area unsafe for passenger traffic.

3. Defendant failed to properly inspect its premises.

4. Defendant failed to properly warn passengers utilizing its fixed base operation/aircraft terminal, including the failure to mark or properly mark any so-described designating walkway.

Defendant also engaged in negligent activity when it backed an aircraft out of a hanger in front of Plaintiff and in his walking path immediately as Plaintiff exited the building. Defendant was negligent in backing the plane at the time and in the manner that it did, and it was negligent in failing to warn Plaintiff about the activity.

Vitesse's lease agreement with the City of Dallas, which is alluded to in count one, provided that Vitesse agreed to “maintain in good repair and in a clean and orderly condition any common areas, taxiways, ramps, public aprons, public access areas, runways and other public areas of the airport essential to Lessee's operations that conform with Lessor's Department of Aviation and applicable Federal Aviation Administration (FAA) construction specifications.” The lease required Vitesse to “take all precautions reasonably necessary to promote the...