Helbing v. Hunt

• Decision Date: 19 March 2013
• Docket Number: No. 01–11–00590–CV.,01–11–00590–CV.
• Citation: 402 S.W.3d 699
• Parties: Elizabeth HELBING, Appellant v. Oliver Alan HUNT and John William Deaver, Appellees.
• Court: Texas Court of Appeals

402 S.W.3d 699

Elizabeth HELBING, Appellant

v.Oliver Alan HUNT and John William Deaver, Appellees.

No. 01–11–00590–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 29, 2012.

En Banc Reconsideration Denied March 19, 2013.

Alan Brandt Daughtry, Attorney at Law, Houston, TX, for Appellant.

Sheryl Gray Rasmus, Jean Ann Kelly, The Rasmus Law Firm, Austin, TX, Mainess Gibson, Sheryl Sipes Norman, Connelly Baker Wotring LLP, Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.

OPINION

TERRY JENNINGS, Justice.

Appellant, Elizabeth Helbing, challenges the trial court's rendition of summary judgment in favor of appellees, Oliver Alan Hunt and John William Deaver, in her suit against them for negligence.¹ In two issues, Helbing contends that the trial court erred in granting Hunt and Deaver summary judgment on the ground that they did not owe her a duty of reasonable care.

We reverse and remand.

Background

In her fourth amended petition, Helbing alleges that in the summer of 2007, she participated in a “student orientation” for incoming freshmen at Texas A & M University known as “Fish Camp,” where Hunt and Deaver served as her counselors. During the subsequent school year, Fish Camp counselors would commonly organize “hang outs” and “formal get-togethers” involving the freshman students. On the night of September 6, 2007, Hunt and Deaver “decided to take a group of students to a railroad bridge,” “climb down from the [b]ridge,” “lay on a concrete platform under the railroad tracks,” and then “witness a train pass overhead.” Hunt telephoned Helbing to invite her on the trip, telling her that “as she looked back on her time at college, she would be more likely to remember the planned trip to the railroad tracks ... than she would remember studying for a quiz.” Helbing interpreted Hunt's call as an invitation to an official Fish Camp “hang out.”

Hunt and Deaver then drove Helbing and three other freshmen to the bridge. Upon their arrival, Hunt and Deaver “led the students on a path down the railroad tracks ... using only cell phones for lighting.” Although Deaver gave the students a “safety” briefing, neither he nor Hunt informed them of “the risk of falling between unnoticeable gaps” in the bridge. Hunt, Deaver, and the students walked across the bridge to “step down onto a concrete platform” that was “at least 30 feet off the ground.” After the train passed overhead, the students climbed back up onto the railroad tracks, where Helbing “misstepped into a gap between the end of the railroad ties” and fell to the ground below. She suffered “multiple spinal injuries that rendered her partially paralyzed.”

Helbing alleges that Hunt and Deaver had “assumed a position of leadership and trust ... which she relied upon, and they had a duty to exercise reasonable care in their leadership of the group on the night of the accident.” Specifically, she alleges that Hunt and Deaver were negligent in:

a. leading [Helbing] into an unreasonably dangerous activity;

b. failing to properly investigate and assess the risks of the activity;

c. failing to properly disclose to [Helbing] the risks and hazards associated with the activity so that she could make an informed choice about either declining participation in the activity or employing measures such as proper footwear and the use of a flashlight to reduce the risks of the activity; and/or

d. failing to provide proper lighting and instruction to reduce the risk of the activity.

Helbing further alleges that Hunt and Deaver's conduct “constituted a negligent undertaking” giving rise to a duty because,

1) Defendants Hunt and Deaver undertook to perform services that they knew or should have known were necessary for [Helbing's] protection, 2) Defendants Hunt and Deaver failed to exercise reasonable care in performing those services, and either 3) [Helbing] relied upon the Defendants Hunt and Deaver's performance, or 4) Defendants Hunt and Deaver's performance increased [Helbing's] risk of harm.

Helbing seeks damages for past and future medical expenses, past and future economic losses, past and future pain and mental anguish, past and future physical impairment, and past and future disfigurement.

Hunt and Deaver filed their answer, generally denying Helbing's allegations and specifically denying that “they were acting in any capacity associated with Fish Camp,” “they owed [Helbing] a legal duty to look out for her safety,” or “they undertook to perform any services that they knew or should have known were necessary for [Helbing's] protection.” In their partial summary-judgment motions on Helbing's negligence claims, Hunt and Deaver argued that “[n]o relationship existed” between them and Helbing that created a legal duty. They asserted that Helbing was a “voluntary participant in the activity in which she was injured.” And they further argued that they could not be held liable under a theory of negligent undertaking because they “did not undertake to provide any services” to Helbing, who was “merely a co-participant” in the trip to the bridge.

In her response to Hunt and Deaver's summary-judgment motions, Helbing argued that Hunt and Deaver owed her a reasonable duty of care “based on their counselor relationship of trust and leadership.” Helbing also argued that Hunt and Deaver engaged in a “voluntary affirmative undertaking” by providing “instructions, warning, and leadership” to the freshmen during the trip. She asserted that they provided inadequate lighting and “physical assistance and guidance” to the freshmen while they were climbing on the railroad bridge. The trial court granted Hunt and Deaver's summary-judgment motions.

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of proving that he is entitled to judgment as a matter of law and there are no genuine issues of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). When a defendant moves for summary judgment, he must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of his affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341. In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant must be taken as true, and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Lawson v. B Four Corp., 888 S.W.2d 31, 33–34 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Summary Judgment

In her first and second issues, Helbing argues that the trial court erred in granting Hunt and Deaver summary judgment because Hunt and Deaver “affirmatively created” an unreasonable risk of harm to Helbing and they failed to exercise reasonable care when they undertook to take the freshmen to the railroad bridge and guide them to witness a train pass overhead.

The common law doctrine of negligence consists of three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). The threshold inquiry in a negligence case is duty. El Chico, 732 S.W.2d at 311. A duty is “a legally enforceable obligation to conform to a particular standard of conduct.” Hand v. Dean Witter Reynolds Inc., 889 S.W.2d 483, 491 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citing Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 (Tex.App.-Dallas 1993, writ denied)).

Whether to impose a duty under certain circumstances is a question of law. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). However, this legal question is decided based on the particular facts of the case. See Sanders v. Herold, 217 S.W.3d 11, 15 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985)). If the facts are disputed, and one version of the facts would support the imposition of a duty, summary judgment is improper.See Mitchell v. Missouri–Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex.1990). “The existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact for the jury.” Id. (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex.App.-Texarkana 1981, writ ref'd n.r.e.)). Thus, in a summary-judgment proceeding, if the nonmovant's version of the facts would support the imposition of a legal duty, summary judgment for the defendant based on a claim of no duty is inappropriate. Sanders, 217 S.W.3d at 15.

Courts determine whether a duty exists by examining factors such as the risk, foreseeability, and likelihood of injury, the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, the relationship between the parties, whether one party had superior knowledge of the risk, whether that party had the right and ability to control the actor whose conduct precipitated the harm, and any other relevant competing individual and societal interests implicated by the facts of the case. Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289–90 (Tex.1996); Taylor v. Louis, 349 S.W.3d 729, 734 (Tex.App.-Houston [14th Dist.] 2011, no pet.).

Texas courts have long recognized that a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex.1991); Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 120 (Tex.1976); Restatement (Second)...