Haight v. Savoy Apartments, 01-90-00261-CV

• Court: Court of Appeals of Texas
• Writing for the Court: MIRABAL
• Citation: 814 S.W.2d 849
• Parties: Doris Louise HAIGHT, Appellant, v. SAVOY APARTMENTS, Marine Charters, Inc., and Cook Interests, Appellees. (1st Dist.)
• Docket Number: No. 01-90-00261-CV,01-90-00261-CV
• Decision Date: 22 August 1991

Page 849

814 S.W.2d 849

Doris Louise HAIGHT, Appellant, v. SAVOY APARTMENTS, Marine Charters, Inc., and Cook Interests,

Appellees.

No. 01-90-00261-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 22, 1991.

Timothy F. Lee, Houston, for appellant.

Michele Quattlebaum, Gene F. Creeley, II, Houston, for appellees.

Before DUGGAN, MIRABAL and DYESS, JJ.

OPINION

MIRABAL, Justice.

Nineteen year-old Rhonda Louise Haight was sexually assaulted and murdered on June 30, 1984, while she was visiting the Savoy Apartments in Houston. Her assailant was an employee of the Savoy Apartments.

Rhonda's mother, Doris Louise Haight (appellant) brought a wrongful death and survival action, in her individual capacity and as the legal representative of Rhonda's estate, naming as defendants the Savoy Apartments and its three owners. A summary judgment, denying relief to appellant, was granted in favor of the Savoy Apartments and two of its owners ¹ (collectively referred to as "the Savoy Apartments"). We reverse and remand.

Appellant's suit alleged that negligent acts or omissions of the Savoy Apartments resulted in Rhonda Haight's assault and death. The negligent acts complained of were: (1) the Savoy Apartments' hiring an employee with a violent past criminal record; ² (2) its permitting this employee to participate in social activities on the premises; and (3) its failure to provide adequate security in and around the premises. Appellant also claimed the Savoy Apartments' reckless disregard for the safety of others amounted to gross negligence.

The Savoy Apartments' original motion for summary judgment was based on one ground, that appellant could not prove foreseeability of the risk to Rhonda Haight. The motion states in part:

The foremost consideration in establishing the existence of a duty is the foreseeability of the risk.

There is no evidence to indicate that Defendants knew of the risk or should have reasonably anticipated the risk of criminal conduct by third parties against the plaintiff. The risk was therefore not foreseeable and cannot give rise to a duty on the part of Defendants.

It follows that Defendants were under no duty to protect plaintiff against the unforeseeable criminal acts of third parties and therefore they are not liable to plaintiff based on a claim of negligence.

In a supplemental motion for summary judgment, the Savoy Apartments asserted Rhonda Haight was not exposed to Jay Smith through his employment, and he was not acting in the course and scope of his employment at the time of the assault; therefore, appellant had no cause of action based on negligent hiring. The Savoy Apartments also repeated its position that the violent acts of its employee were not foreseeable, and added the ground that the security measures utilized on the night in question were proper, and could not have prevented the incident in question. The order granting summary judgment does not specify the grounds relied on for the court's ruling.

In a sole point of error, appellant contends the trial court erred in granting summary judgment because appellant showed there were genuine issues of material fact to be decided by the jury.

The standard for appellate review of a summary judgment for a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).

A summary judgment cannot be affirmed on any grounds not presented in the motion for summary judgment. Hall v. Harris County Water Control and Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex.App.--Houston [14th Dist.] 1984, no writ). When a trial court's order does not specify the grounds relied on for its ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious. Insurance Co. of North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

The summary judgment evidence consists of affidavits and depositions, along with records from the Harris County District Attorney's office. The summary judgment evidence is contradictory on numerous issues. Under the proper standard of review, that evidence which favors appellant will be taken as true.

Jay Dee Smith and Tom Smith were brothers who worked for the Savoy Apartments as grounds keepers. They lived off the premises. They had been employed by the apartments for about three months when the incident giving rise to this suit occurred.

On June 29, 1984, an acquaintance of theirs, Rhonda Haight, went to their apartment, where they were joined by several people. After drinking a while, they decided to swim at the Savoy Apartments, where one of the group lived. The group gathered at the pool and continued drinking for some time. Later that night or early the next morning, Rhonda was sexually assaulted by Jay Dee Smith, and her body was found in a vacant field adjacent to the apartments the following morning.

The offense report accompanying the motion for summary judgment indicates that Jay Smith claimed he passed out and when he came to, Rhonda was floating in the pool. He then tried to revive Rhonda and when he could not, he dragged her to the field where the sexual assault occurred. There was evidence that blood at the pool and drag marks indicated Rhonda was attacked at the pool. There is also evidence she died of strangulation.

Jay Smith had a prior criminal record, including a conviction for assaulting two individuals with a sledgehammer, in Indiana. The Savoy Apartments' manager testified the apartments had no rules regarding hiring people with criminal convictions. She said she gave Smith an application that asked if the applicant had ever been convicted of a felony. She stated if the applicant answered no, she would accept the answer and would not ask further. She later said that she did not recall asking Smith if he had been convicted of a felony, but that was something she did when someone applied. The manager testified she thought it was illegal to obtain information about a person's felony conviction.

The manager stated that no one was hired without a check by the security officer, yet no written reports were ever kept, and the security officer never came back and told her anything the check disclosed on an employee. The manager relied on the security officer telling her whether the employee was "okay" or not.

The manager usually kept notes on the margin of applications regarding references, but she could not locate the application on Jay Smith because the police took it. The manager said she could not remember anyone she called, or if she called more than one person for a reference on Smith.

Appellant's security expert, Jack Barbour, stated in his affidavit that information on Smith's criminal background was available by telephone or writing. It was his opinion that reasonable care required an employer to investigate the criminal history of a potential employee for a job such as the one Jay Dee Smith held. He believed it was reasonably foreseeable that a man with a history of violent criminal acts may continue to act in a violent manner and pose a significant risk of harm to persons on the premises of the Savoy Apartments.

The Savoy Apartments did not provide 24 hour on-premises security. There was no watchman, no control gates, no surveillance cameras, and no rotating staff security responsibility. The only security "guard" or "officer" was a policeman named Kenneth Kellough. In exchange for a free apartment at the Savoy, Kellough was supposed to make periodic patrols of the premises when he was not on-duty for the police department. During the patrols he wore "plain clothes," not his uniform.

Regarding security at the apartments, the manager testified in her deposition that the pool normally closed at 11:00 p.m. or...