Gibbs v. Shuttleking, Inc.

• Citation: 162 S.W.3d 603
• Decision Date: 03 March 2005
• Docket Number: No. 08-02-00037-CV.,08-02-00037-CV.
• Parties: Michael GIBBS, Appellant, v. SHUTTLEKING, INC., Louisiana Riverboat Gaming Partnership d/b/a Isle of Capri Casino-Bossier City, Marty Negoslawski, Mitchell Goldminz, and Marvin Alger, Appellees.
• Court: Supreme Court of Texas

Page 603

162 S.W.3d 603

Michael GIBBS, Appellant, v. SHUTTLEKING, INC., Louisiana Riverboat Gaming Partnership d/b/a Isle of Capri Casino-Bossier City, Marty Negoslawski, Mitchell Goldminz, and Marvin Alger, Appellees.

No. 08-02-00037-CV.

Court of Appeals of Texas, El Paso.

February 3, 2005.

Rehearing Overruled March 3, 2005.

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Thomas B. Cowart, Law Office of Windle Turley, P.C., Dallas, William J. Dunleavy, Law Office of William J. Dunleavy, Carrollton, for Appellant.

Christine D. Roseveare, Strasburger & Price, L.L.P., Dallas, for Appellee.

Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This case arises from a bus hijacking in which the driver, Michael Gibbs, was seriously injured. He appeals the summary judgment granted in favor of his employers—ShuttleKing Inc., Louisiana Riverboat Gaming Partnership, Marty Negoslawski, Mitchell Goldminz, and Marvin Alger.¹ Appellees will be referred to collectively as ShuttleKing. At issue is the foreseeability of the criminal conduct of the hijackers. We affirm.

FACTUAL SUMMARY

As a bus driver for ShuttleKing, Gibbs drove passengers from Dallas to the Isle of Capri Casino in Bossier City, Louisiana. On November 7, 1996, three passengers pulled weapons and hijacked the bus in Tyler, Texas. Gibbs was shot and seriously wounded during the robbery. He sued ShuttleKing for negligence, alleging that it failed to provide a reasonably safe workplace. In particular, he complained that ShuttleKing (1) failed to check passengers' luggage; (2) allowed passengers to enter unattended buses; (3) allowed hijackers to enter the bus with weapons; (4) failed to provide an adequate means of communication so that Gibbs could advise ShuttleKing of danger; (5) failed to provide him with an adequate means to secure funds from the sale of tickets; (6) failed to instruct or properly instruct employees on security measures; and (7) failed to instruct or properly instruct employees to not leave buses unattended. Gibbs contended that he suffered severe injury to his head, face, left hand, and to his body generally. He sought medical expenses, lost wages and loss of earning capacity, physical pain and suffering, mental anguish, disability, and disfigurement.

PROCEDURAL SUMMARY

Gibbs sought recovery on both negligence and promissory estoppel theories.² The trial court initially granted partial summary judgment dismissing the negligence claims. The promissory estoppel issue was tried to a jury, and Gibbs was awarded $150,000 in damages. The Eastland Court of Appeals determined that the judgment was interlocutory since it failed to address all claims and parties. On remand, the trial court signed an amended final judgment which incorporated both the partial summary judgment on the negligence issues and the judgment on the jury verdict. Gibbs has appealed only the summary judgment as to negligence. He asks us to affirm the judgment as it pertains to promissory estoppel.

We abated the appeal after Negoslawski filed for bankruptcy. The bankruptcy court discharged Negoslawski from his obligations on December 11, 2002. Gibbs concedes that he cannot resume his action against Negoslawski in a personal capacity. Consequently, he has waived collection of any judgment from Negoslawski personally and has restricted his collection of any damages to insurance covering Negoslawski's liability, to the co-defendants, or to other responsible third parties. We have reinstated the appeal and consider it now on the merits.

ISSUES ON APPEAL

In his first issue for review, Gibbs generally complains that the trial court erred by granting summary judgment on the negligence issues. He contends that the evidence submitted in his response raised a fact issue as to whether the risk of harm to drivers and passengers was foreseeable. His remaining three issues deal with the applicability of Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998). In Issue Two, Gibbs posits that a defendant can be held liable for the criminal acts of a third party if it knows of an unreasonable and foreseeable risk to the plaintiff. He then asks whether the bus hijacking was foreseeable by ShuttleKing. In Issue Three, he queries whether Timberwalk applies when the nature of the business, as opposed to the premises of the business, created the risk of criminal conduct. In Issue Four, he questions whether the Timberwalk foreseeability factors apply to a moving vehicle.

STANDARD OF REVIEW

A no-evidence summary judgment is proper only when the non-movant fails to prove there is a genuine issue of material fact on one or more of the elements identified in the motion. Tex.R.Civ.P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard that we apply in reviewing a directed verdict. Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3 (Tex.App.-El Paso 1999, pet. denied). The motion should be granted if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant's claim on which the non-movant would have the burden of proof at trial. Marsaglia, 22 S.W.3d at 4. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact, and the legal effect is that there is no evidence. Id.

THE MOTION AND RESPONSE

ShuttleKing filed both no-evidence and traditional motions for summary judgment. The no-evidence motion relied upon Timberwalk and argued that Gibbs failed to establish the duty element of negligence. In his response, Gibbs claimed that Timberwalk was inapplicable because the case at bar did not involve a dangerous premises condition. Instead, he argued his suit was predicated on a negligent activity within the ambit of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992). Alleging that the risk of harm was foreseeable and that ShuttleKing had actual subjective awareness of the risks involved, he claimed ShuttleKing owed him a duty of ordinary care and a duty to provide a safe workplace. He also claimed the existence of a special relationship. Finally, he contended that ShuttleKing owed a high duty of care to its passengers since it was a common carrier, and Gibbs was a necessary and unintended/intended beneficiary.³

In his affidavit, Gibbs averred that he had complained to Safety Director Lonnie Self about the risk of robbery due to the presence of large amounts of cash from ticket sales. Several other drivers had also complained to management. The affidavit of driver Joyce Bridwell revealed that she had complained to both Alger and Negoslawski. Yet another driver, Milton Kelly, had reported to Self and Alger in 1995 that a bus carrying passengers to Las Vegas in a similar operation had been hijacked. When Kelly voiced concerns about security, Self belittled them to the extent that Kelly believed the company did not take the dangers seriously.

Charter Sales Manager Priscilla Mantle acknowledged that a regular topic at management meetings was the risk associated with accepting cash for the sale of tickets on the casino charter buses. This was a particular concern since the Department of Transportation required the buses to stop for a roadside check between Dallas and Bossier City, often at night and in desolate areas. Bus drivers had also complained about the cash sales and the dangers associated with them, and some refused to drive the night run. Cash sales were temporarily halted but were later reinstated due to a decline in ticket revenues. Alger expressed concerns about the danger of cash collections. Management discussed having an employee travel to pick up the cash collected each night, but since no employee had time to make the trip, the cash was left with the drivers.

TIMBERWALK

At the heart of this dispute is the Texas Supreme Court's decision in Timberwalk. Inasmuch as it weaves throughout the issues on appeal, we will begin our analysis with a review of the opinion. There, a tenant who was raped in her apartment sued the landlord and management company for its negligent failure to provide adequate security. 972 S.W.2d at 751. On appeal, the Supreme Court was faced with two issues: (1) whether the plaintiff had alleged a negligent activity or a premises defect and (2) whether the risk that a tenant would be sexually assaulted was reasonably foreseeable to the defendants. Id.

The court recognized that the failure to provide adequate security against criminal conduct is ordinarily couched in terms of premises liability. 972 S.W.2d at 753. That was particularly true since the tenant did not assert that she was injured by or as a contemporaneous result of any activity of the defendants. The only activity that had injured the tenant was the conduct of the rapist. Id. The court then addressed whether the defendants had a duty to provide security measures and whether the likelihood of violent criminal activity within the apartment complex could have been reasonably foreseen. Id. at 756. The opinion articulated the factors to be considered in determining the foreseeability of third party criminal acts: (1) proximity, (2) recency, (3) frequency, (4) similarity, and (5) publicity. Id. at 759. In a concurrence, Justice Spector suggested that other types of evidence may also establish foreseeability, such as the nature, condition, and location of the defendant's premises. Id. Spector quoted the language from Restatement (Second) of Torts section 344 comment f: "If the place or character of [a] business ... is such that [the landowner] should reasonably anticipate careless or criminal conduct...