Hancock v. City of San Antonio

• Decision Date: 10 October 1990
• Docket Number: No. 04-89-00258-CV,04-89-00258-CV
• Court: Texas Court of Appeals
• Parties: John Henry HANCOCK, Independent Executor of the Estate of Ella A. Saenz, Deceased, and May Hancock, Appellants, v. CITY OF SAN ANTONIO, Texas; City Public Service Board of the City of San Antonio, and Fisher Controls International, Inc., Appellees.

Page 881

800 S.W.2d 881

John Henry HANCOCK, Independent Executor of the Estate of Ella A. Saenz, Deceased, and May Hancock, Appellants, v. CITY OF SAN ANTONIO, Texas; City Public Service Board of the City of San Antonio, and Fisher Controls International, Inc., Appellees.

No. 04-89-00258-CV.

Court of Appeals of Texas San Antonio.

Oct. 10, 1990.

Rehearing Denied Dec. 18, 1990.

William E. Hornbuckle, Ronald L. Clark, Hornbuckle & Clark, San Antonio, for appellants.

Richard C. Danysh, Judith R. Blakeway, Matthews & Branscomb, John Milano, Jr., Aimee Kolze, Thornton, Summers, Biechlin, et al., San Antonio, for appellees.

Before BUTTS, CHAPA and CARR, JJ.

OPINION

CHAPA, Justice.

This is an appeal from a wrongful death, survival action resulting from the death of Ella Saenz, who died from injuries received in an explosion at the Chateau Orleans Apartments in San Antonio, Texas. Her estate and daughter, Mae Hancock, sued the owners of the apartments, Brentwood Financial Corporation, the City of San Antonio and its agent City Public Service Board (CPS), the gas supplier, and Fisher Controls (Fisher), the manufacturer of a gas pressure regulator, alleging negligence actions and product liability/strict liability claims.

The appellants settled with the apartment owners prior to trial and the trial court granted partial summary judgment for the city and CPS on the products liability/strict liability claim as well as on other causes of action not made the subject of this appeal. The negligence cause of action was tried to a jury which found the owners of the apartment 80% negligent, the deceased 15% negligent, and the daughter, Mae Hancock, 5% negligent. Moreover, the jury awarded no damages.

The dispositive issues before us are:

1. whether appellant Mae Hancock, daughter of the deceased, could be contributorily negligent, and if not, was such a finding by the jury harmful error under the attending circumstances; and

2. whether the court erred in entering partial summary judgment which dismissed the appellants' cause of action for products liability against the City of San Antonio and its agent, CPS.

The appellants initially argue that appellant Mae Hancock, daughter of the deceased, had no duty to act or protect against the danger of an explosion and, therefore, a finding of contributory negligence, as to her, was error. The only evidence that might indicate that Mae Hancock was negligent was her own testimony. Ella Mae Hancock, daughter of Ella Saenz, testified that her mother was 64 and widowed at the time of her death. On cross-examination, she testified that she would visit her mother about every weekend and, when she did so, she occasionally smelled natural gas. She testified that she had talked to her mother about the smell and her mother told her that she had reported the gas smell to the apartment managers. Mae Hancock testified that she checked some of the things, including the stove and the furnace. However, she testified that she did not open up and look at the contents or components of the furnace because she had no idea how a furnace worked. She testified that her mother told her that other tenants were complaining about the smell of gas and that "some of them were irritated about the fact that it hadn't been resolved." She stated that during the three year period that she visited her mother at the apartment, she never called the City of San Antonio about looking into the problem, nor did she call CPS to have them try and detect where the leaks were. She stated that her mother was considering moving out of the apartment because of "a problem with the bathroom that she was upset about."

Negligence is based on the violation of a duty toward someone. When no duty exists, no legal liability can arise on account of negligence. See Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). The action or omission complained of must be wrongful in that it involves the breach of some duty which the alleged wrongdoer owes to the injured party at the time the injury was inflicted. Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.). Whether or not a legal duty exists under a given state of facts is essentially a question of law to be determined by the court. Id.

Texas still follows a general rule that Texans do not owe others general amorphous legal duties. The rule in Texas still distinguishes between moral and legal duties. Although one may have a moral duty to prevent a blind person from crossing a busy street against a light, a person has no legal duty to do so unless additional factors exist. These other factors include the existence of familial or voluntary relationships which impose a duty, statutes or ordinances which may legally require action, or special circumstances, such as having placed the blind man in his precarious position in the first place.

Kilgarlin & Sterba-Boatwright, The Recent Evolution of Duty in Texas, 28 S.TEX.L.REV. 241, 245 (1986).

Thus, one person is under no duty to control the conduct of another, even if he has the practical ability to exercise such control. Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983), citing, RESTATEMENT (SECOND) of TORTS § 315 (1965). Relationships that may, as a matter of law, impose certain duties upon parties include the duty of a parent to control the conduct of his child, the duty of a master to control the conduct of a servant, the duty of a possessor of land or chattels to control the conduct of a licensee, the duty of those in charge of a person having dangerous propensities and the duty of a person having custody of another to control the conduct of third persons, none of which are applicable under these facts. See Otis at 309; RESTATEMENT (SECOND) of TORTS §§ 316-20 (1965). One may also voluntarily enter an affirmative course of action affecting the interests of another which would be regarded as assuming a duty to act with reasonable care. Otis at 309. This exception is also inapplicable under these facts.

Texas courts have held that "if a person knows that gas is escaping into his home from the main of a gas company, it is his duty to take suitable precaution for his safety. Gray v. Enserch, Inc., 665 S.W.2d 601, 605 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.) (emphasis added). "[I]t would be his duty to notify the company of the leak." Id. However, appellees cite no Texas cases, and we have found none, that hold that a third party has a duty to notify the company of a suspected leak purely on behalf of another.

Nevertheless, appellees, citing Jackson v. Associated Developers of Lubbock, 581 S.W.2d 208 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.), and Moody v. City of Galveston, 524 S.W.2d 583 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.), argue that appellant Mae Hancock may be held negligent because "a plaintiff is under a duty to exercise that degree of care for his own safety as a reasonably prudent person would or should exercise under the same or similar circumstances." (Emphasis added.) This contention is obviously inapplicable here because Mae Hancock's own safety was not at issue. Appellees further argue that "Mae Hancock owed a legal duty of reasonable care to herself for her own safety and welfare as well as to others," but cite no authority for this proposition, and our search has revealed none. Appellees also assert that whether "she owed a legal duty to her mother, beyond a moral duty, is irrelevant to the question [sic] whether she was contributorily negligent." We disagree, for it is clear that negligence is based on a violation of a duty. See Abalos, 544 S.W.2d at 631.

The cases relied on by appellees are easily distinguishable. All of the cases cited for the proposition that appellant Mae Hancock owed a duty, involve situations in which the plaintiff, who was found to be contributorily negligent, was the actual injured party. None of the cases cited involved a situation, as we have under these facts, in which a plaintiff was held to be contributorily negligent for injuries suffered by a third party.

We hold that, under these facts, Mae Hancock had no legal duty to control the actions of her deceased mother, nor to notify appellees of a suspected leak. Therefore, there being no legal duty upon Mae Hancock, no premise exists to find her contributorily negligent. We sustain appellants' first point of error. However, before a determination is made of whether this court should reverse the trial court's judgment based upon the error in submitting issues inquiring as to whether Mae Hancock could be found contributorily negligent, "the appellate court [must] be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case...." TEX.R.APP.P. 81(b)(1).

"Where the jury has answered special issues on liability in the negative, the failure of the jury to award damages is not error," Johnson v. Whitehurst, 652 S.W.2d 441, 449 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.), and "in the absence of liability, the question of damages becomes immaterial." Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). Likewise, "the general rule [is] that where the jury finds no damages, findings on issues of liability are immaterial and harmless." Canales v. Nat'l Union Fire Ins. Co., 763 S.W.2d 20, 23 (Tex.App.--Corpus Christi 1988, writ denied). Further, where there is error in the submissions or definitions relating to the liability question, the error is harmless if the net result nevertheless is that the complaining party recovers zero damages. Id. Moreover, where "[n]o party appeals from the trial court's judgment insofar as it disposes of the actions by and against [a particular party], [t]he trial court's judgment as to them is affirmed and...