Guereque v. Thompson
| Decision Date | 28 August 1997 |
| Docket Number | No. 08-96-00153-CV,08-96-00153-CV |
| Parties | Roberto GUEREQUE and Maria Guereque, Individually and as Next Friend of Juan Pablo Guereque, Rosalba Guereque and Kristina Guereque, Minors, and as Representatives of Jorge Eduardo Guereque, a Deceased Minor, Appellants, v. Carmen THOMPSON, Esther Villalobos, and Lucy Enriquez, Individually and d/b/a Sunset Trailer Court and Does 1-10 Inclusive, Appellees. |
| Court | Texas Court of Appeals |
Ray Velarde, El Paso, for Appellants.
David L. Curl, Jeffrey T. Weikert, Studdard & Melby, P.C., El Paso, for Appellees.
Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.
This is an appeal from a summary judgment granted against Appellants on their claims of negligence and gross negligence arising from the drowning death of their son. Finding first that their statutory negligence claims are not properly before the Court, and second, that no common law duty of care was owed by Appellees, we affirm.
Appellants brought suit for the wrongful death of their ten year old son, Jorge. We take as true for purposes of summary judgment the following facts alleged by them as non-movants. At the time of the events giving rise to this lawsuit, Appellants lived at Appellees' property, the Sunset Trailer Court. The rear of the trailer park abuts the Franklin Canal. In the early evening of March 5, 1993, Jorge was playing ball with other children at the trailer court. After the ball fell into the canal, Jorge tried to retrieve it by crawling through a large gap in the fence. Tragically, he drowned in the canal.
Appellants' original petition, filed November 16, 1993, alleged that the fence guarding the trailer park residents from the canal was improperly erected. Specifically, Appellants alleged that Appellees were negligent:
in creating a dangerous condition due to the lack of proper fencing on the premises;
in maintaining a dangerous condition due to the lack of proper fencing;
in failing to remedy a dangerous condition due to a lack of proper fencing;
in failing to warn of the dangerous condition created by the lack of proper fencing; and,
in other acts of negligence.
Appellants also alleged that Appellees were grossly negligent because they knew of the dangerous condition of the fence and failed or refused to remedy it in conscious indifference to the safety of the residents.
Appellees filed an original answer generally denying the allegations on January 19, 1994, and on August 4, 1994, they filed a motion for summary judgment, which alleged in pertinent part that:
the premises defect, the Franklin Canal, was not on Appellees' property on the date of the accident Appellees never owned, operated, or controlled the Franklin canal;
Appellees owed no greater duty than the general public with respect to any hazards that may have arisen from conditions outside the trailer park, not caused by Appellees;
Jorge Guereque was no longer an invitee with respect to Appellees when he left the premises of the trailer park;
the Franklin Canal is one of many canals throughout El Paso; such canals are not unique and do not constitute unique dangers that would impose on Appellees a duty to warn;
Jorge Guereque was no more than a trespasser to the owner of the property where the canal is located; Appellees should not be held to a higher duty of care than that imposed on the actual owner of land where the accident occurred; and
the canal is open and clearly visible, such that Appellees had no greater knowledge of its dangers than would Jorge's parents or the public in general.
In support of these grounds for summary judgment, all of which sought to establish that Appellees owed no duty of care with respect to hazards related to the Franklin Canal, Appellees filed the affidavit of Carmen Thompson, one of the Appellees and a co-owner of the Sunset Trailer Court. Thompson attested that a canal or drainage ditch runs behind the trailer park, approximately sixty feet behind the property line and on an embankment, about eight feet higher than the land on which the trailer park is located. She stated that the fence separating the trailer park and the canal property actually rests three inches past the property line onto the canal property, which is owned by the El Paso Electric Company. She claimed that Appellees had no "connection" with the canal, and no economic interest in it or control over it. Thompson's affidavit is silent as to whether the length of canal directly behind the trailer court is open and obvious, or is obscured by its embankments or vegetation.
Appellants filed their response to the motion for summary judgment on October 4, 1994, alleging that the Franklin Canal was "an open and obvious danger as a matter of law." Appellants also reiterated their allegation that the fence separating the trailer court from the canal was in poor repair, with large gaps in it, through which a child could pass. The response did not contest the other facts attested to in Thompson's affidavit. Instead, it contested the legal conclusion reached in the motion for summary judgment, urging that Appellees had assumed a duty of care by constructing the fence. Moreover, Appellants argued that the incursion of the fence onto the adjoining property imposed on Appellees a duty of care on the adjoining property itself.
Some five weeks later, the allegation concerning the condition of the fence was confirmed by deposition testimony from Manuel Hernandez, the property manager of the trailer court. He established that the fence was in existence in 1958 when the current owners of the trailer court bought the property, that the fence was in serious disrepair at the time Jorge drowned, that Hernandez informed the owners of the trailer court that the fence violated the El Paso City Code, and that the owner told Hernandez not to do anything unless the city inspector required the repair of the fence.
The trial court set the summary judgment hearing for January 23, 1995. On January 17, six days prior to the scheduled hearing, Appellants filed their supplemental response in opposition to the motion for summary judgment, incorporating the testimony of Hernandez. On January 20, three days prior to the hearing, Appellants filed their first amended original petition adding a second claim based on statutory negligence, or negligence per se, to the common law negligence claim. Citing El Paso Municipal Code 20.80.310 () and 20.40.090 (requiring a trailer park to provide a minimum of 3,000 square feet for a children's play area), Appellants alleged that they were in the class of persons intended to be protected by the ordinances.
On January 23, the trial court conducted the hearing on the motion for summary judgment. 1 1 The record contains no written objections from either Appellants or Appellees. Specifically, there is no motion from Appellants requesting leave to file the first amended original petition within seven days of the summary judgment hearing, there are no written objections to the trial court's refusal to grant leave to file the first amended original petition, and there are no objections with respect to the manner in which the summary judgment hearing itself was conducted. Nor is there any written objection from Appellees concerning unfair surprise or other prejudice that would result from a decision by the trial court to grant Appellants leave to file the first amended original petition.
On February 2, 1995, Appellants filed their second supplemental response to the motion for summary judgment which refers to arguments made by Appellees in a document that appears nowhere in the record: a supplemental response from Appellees in which they responded to the negligence per se allegation raised in Appellants' first amended original petition. Appellees had offered an affidavit and other documents to demonstrate that the trailer park was in compliance with the El Paso Municipal Code. In their second supplemental response, Appellants responded to these arguments and stated that, at a minimum, the question of the trailer park's compliance with the city code created a fact issue precluding summary judgment. Appellants incorporated the deposition testimony of Hernandez and Thompson.
By letter dated September 5, 1995, the trial court advised counsel of its decision to grant summary judgment relief. On September 27, Appellees filed a motion for entry of judgment, reciting that the summary judgment motion was heard on January 23, 1995, that summary judgment had been rendered in favor of Appellees, and requesting that the trial court enter judgment. The parties then exchanged motions and memoranda concerning the trial court's decision not to consider Appellants' first amended petition, first supplemental summary judgment response, or second supplemental summary judgment response. The entry hearing was conducted on January 12, 1996. On January 12, the court signed an order granting the motion for summary judgment as to all allegations raised in Appellants' original petition. The order states specifically that the court refused to consider Appellants' first amended original petition, or Appellants' first or second supplemental summary judgment responses, because these documents were filed within seven days of the January 23, 1995 hearing without leave of court in violation of TEX.R.CIV.P. 63. Significantly, the trial court's refusal to consider the first amended petition means that the negligence per se claim was excluded from consideration.
Summary judgment is appropriate when there exists no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c). The purpose...
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