Guerrero v. Memorial Medical Center of East Texas

• Decision Date: 06 March 1997
• Docket Number: No. 09-95-305,09-95-305
• Citation: 938 S.W.2d 789
• Parties: Filiberto GUERRERO and Maria Guerrero, individually and as representatives of the estate of Blanca Margarita Guerrero Moyeda, Deceased, and as next friend of Jacklyn Dennise Moyeda, Christian Paul Moyeda, Carlos Enrique Moyeda, and Bianca Jazmine Moyeda, Appellants, v. MEMORIAL MEDICAL CENTER OF EAST TEXAS, Appellee. CV.
• Court: Texas Court of Appeals

Page 789

938 S.W.2d 789

Filiberto GUERRERO and Maria Guerrero, individually and as

representatives of the estate of Blanca Margarita Guerrero

Moyeda, Deceased, and as next friend of Jacklyn Dennise

Moyeda, Christian Paul Moyeda, Carlos Enrique Moyeda, and Bianca Jazmine Moyeda, Appellants, v. MEMORIAL MEDICAL CENTER OF EAST TEXAS, Appellee.

No. 09-95-305 CV.

Court of Appeals of Texas,

Beaumont.

Submitted Sept. 19, 1996.

Decided March 6, 1997.

Nick H. Johnson, A. Craig Eiland, T. Bryan Akin, III, Houston, for appellants.

R. Scott Fraley, Elizabeth Fraley, J. Patrick, Bredehoft, Fraley & Fraley, Dallas, Jo Ben Whittenburg, Orgain, Bell & Tucker, Beaumont, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

Appellants, the minor children and parents of Blanca Guerrero Moyeda, appeal the granting of a summary judgment in favor of appellee, Memorial Medical Center of East Texas ("MMC"). Blanca Moyeda was shot on March 20, 1993, by her husband, Enrique Moyeda, while she was at her employment at MMC.

Appellants sued MMC for negligence in failing to exercise reasonable care and diligence in providing security to ensure the safety of its employee, Blanca Moyeda. Appellee filed its motion for summary judgment on the grounds that a premises owner owes no duty to protect an invitee from the criminal act of a third party unless the criminal act was specifically or generally foreseeable. The trial court granted summary judgment for MMC. In a single point of error, appellant contends the trial court erred in granting the summary judgment.

For a defendant to obtain summary judgment, he must either negate at least one element of the plaintiff's theory of recovery or plead and conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). The movant-defendant may accomplish this by offering summary judgment evidence showing that at least one element of non-movant's cause of action has been established conclusively against the non-movant. Once the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence sufficient to raise a fact issue as to the elements negated. Id. Evidence favorable to the non-movant must be accepted as true and every reasonable inference indulged in the nonmovant's favor. Id.

Liability in negligence is premised on the finding of a duty, a breach of that duty which proximately causes injuries, and damages resulting from that breach. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex.1994); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. Id. The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. In determining whether to impose a duty, the court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the actor. Bird, 868 S.W.2d at 769; Otis Eng'g. Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). Of all these factors, foreseeability of the risk is the foremost and dominant consideration. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). In the absence of foreseeability, there is no duty. NationsBank N.A. v. Dilling, 922 S.W.2d 950, 954 (Tex.1996).

As a general rule, a person is under no duty to control the actions of third persons absent a special relationship, such as master/servant or parent/child. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.1995). The rule is taken from RESTATEMENT (SECOND) OF TORTS § 315 (1965), which provides as follows:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

In the instant case, there was no special relationship between MMC and Enrique Moyeda that would give MMC a duty to control the actions of Enrique.

As a general rule, a person also has no legal duty to protect another from the criminal acts of a third person or to control the conduct of another. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Centeq, 899 S.W.2d at 197; Otis Eng'g Corp., 668 S.W.2d at 309; RESTATEMENT (SECOND) OF TORTS § 315(b). This general no-duty rule, however, is not absolute; there are exceptions. For example, in the landlord/tenant relationship, a landlord who retains control over the security and safety of the premises owes a duty to the tenant's employee to use ordinary care to protect the tenant's employee against an unreasonable and foreseeable risk of harm from the criminal acts of third parties. See Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex.1993). Similarly, a landowner has no legal duty to protect another (invitee) from the criminal acts of a third person unless the landowner knows or has reason to know of an unreasonable risk of harm to the invitee. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex.1995). This duty is derived from the principle that a party who has the power of control or expulsion is in the best position to protect against the harm. The right to control the premises is, thus, one of the factors that determines whether a legal duty should be imposed on the owner or possessor of the premises. Id.

The criminal conduct of a third party may be a superseding cause that relieves the negligent actor from liability. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 550 (Tex.1985); RESTATEMENT (SECOND) OF TORTS § 448 (1965). However, the actor's negligence is not superseded and will not be excused when the criminal conduct of a third party is a foreseeable result of such negligence. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992).

Under principles of agency law, employers are responsible for providing a safe work place to their employees. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). See also Brooks v. Nat'l Convenience Stores, Inc., 897 S.W.2d 898, 902 (Tex.App.--San Antonio 1995, no writ). Employees of an owner or occupier are considered invitees of their employer. Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963). In the employer/employee relationship, an employer is not an insurer of the employee's safety, but the employer does have a duty to use ordinary care in providing a safe work place. See Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); Tidwell, 867 S.W.2d at 21.

As in the landlord/invitee situation, whatever duty an employer may have to protect employees injured on the premises against the criminal acts of third parties, that duty does not arise in the absence of a foreseeable risk of harm. See Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 752 (Tex.App.--Corpus Christi 1993, writ denied). Accordingly, MMC is entitled to summary judgment if it establishes as a matter of law that Enrique Moyeda's violent criminal act against Blanca Moyeda was not foreseeable. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker, 924 S.W.2d at 377; Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989); Nixon, 690 S.W.2d at 550-551.

In determining whether criminal acts of third parties are foreseeable, Texas courts apply RESTATEMENT (SECOND) OF TORTS § 344 and specifically rely upon comment f of that section. Comment f states:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

RESTATEMENT (SECOND) OF TORTS § 344 cmt. f. (1965). See also Graham, 848 S.W.2d at 751; Kendrick v. Allright Parking, 846 S.W.2d 453, 456-457 (Tex.App.--San Antonio 1992, writ denied); Garner v. McGinty, 771 S.W.2d 242, 244-246 (Tex.App.--Austin 1989, no writ). The test for foreseeability has two prongs--specific and general. See Graham, 848 S.W.2d at 751; Garner, 771 S.W.2d at 245.

(a) Specifically, did the landowner or occupier realize or should he have realized the likelihood that such acts were occurring or about to occur?

(b) Generally, did the landowner or occupier know or have reason to know from past experience of a likelihood of conduct on the part of a third person in general which would endanger the safety of invitees?

We review the summary judgment evidence to determine whether MMC negated foreseeability as a matter of law and whether appellants raised a fact issue concerning that element.

APPELLEE'S SUMMARY JUDGMENT EVIDENCE

In support of its motion for summary judgment, MMC submitted affidavits from Lois Sparks, housekeeping supervisor at MMC; Officer Laverne Ross, security guard in MMC's security department; Edd Terrell, chief of security at MMC; Michael Taylor, director of Human Resources at MMC; Keith Lewing, custodian of records for the Lufkin Police Department; certain Lufkin Police Department...