Holder v. Mellon Mortg. Co.

• Decision Date: 14 August 1997
• Docket Number: No. 14-96-00043-CV,14-96-00043-CV
• Parties: Angela N. HOLDER, formerly known as Angela N. Hamilton, Appellant, v. MELLON MORTGAGE COMPANY and City of Houston, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 786

954 S.W.2d 786

Angela N. HOLDER, formerly known as Angela N. Hamilton, Appellant, v. MELLON MORTGAGE COMPANY and City of Houston, Appellees.

No. 14-96-00043-CV.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 14, 1997.

Rehearing Overruled Nov. 26, 1997.

Kenneth M. Morris, David A. Furlow, Houston, for appellant.

Laura Anne Coats, Robert M. Schick, Catherine B. Smith, Kathleen A. Gallagher, Houston, for appellee.

Before YATES, HUDSON and FOWLER, JJ.

MAJORITY OPINION

FOWLER, Justice.

Angela N. Holder ("Holder"), formerly known as Angela N. Hamilton, appeals from a summary judgment granted in favor of Mellon Mortgage Company ("Mellon") and from a dismissal in favor of the City of Houston ("the City"). Holder sued both Mellon and the City after she was sexually assaulted by a Houston police officer in Mellon's parking garage. In this appeal, Holder raises three points of error alleging that the trial court erred in granting Mellon's motion for summary judgment, in sustaining Mellon's objection to the affidavit and report of her expert witness, and in granting the City's motion to dismiss. We affirm in part and reverse and remand in part.

I. Background

Holder was driving home at approximately 3:30 a.m. on the morning of November 8, 1992, when Calvin Potter ("Potter"), an on-duty City police officer, stopped her for an apparent traffic violation near downtown Houston. After stopping Holder and taking her identification and insurance card, Potter ordered Holder to follow him. Driving his City squad car, Potter led Holder to the third floor of Mellon's garage less than six blocks away. The garage was unsecured and deserted, and while at the garage, Potter sexually assaulted Holder in the City's police car. After Holder reported the assault, Potter was arrested, tried, convicted, and sentenced to four years in prison.

Holder filed suit against Mellon and the City on June 27, 1994, alleging theories of negligence. Against Mellon, she alleged negligence per se for violation of section 10-361 of City Ordinance No. 93-1570 ("the Ordinance") because the garage was a "dangerous building" within the meaning of the Ordinance. She also alleged common law negligence for Mellon's failure to exercise reasonable care to prevent a foreseeable injury caused by permitting its garage to remain open, easily accessible, unattended, and poorly lit. She also pleaded that this negligence constituted gross negligence. In addition, she asserted a claim for loss of consortium on behalf of her minor child. In her claim against the City, Holder alleged City employees were negligent in their supervision of Potter and his use of the City patrol car.

Mellon moved for summary judgment on the grounds that (1) the City Ordinance is inapplicable to the facts presented here; (2) Mellon owed Holder no legal duty because she was a trespasser, not an invitee, and it has no general duty to prevent criminal acts of third parties outside its control; (3) the criminal conduct in this case was not foreseeable; (4) Mellon's conduct was too remotely connected to Holder's injuries to establish legal causation; and (5) the child's loss of consortium claim fails because Holder did not allege serious, permanent, and disabling physical injury.

On November 6, 1995, the trial court granted Mellon's motion for summary judgment, but its order did not specify the ground on which summary judgment was granted. The trial court also sustained Mellon's objection to the affidavit and report of Holder's security expert, Horace B. Loomis.

The City properly pleaded its affirmative defense of sovereign immunity and moved to dismiss Holder's suit on that basis. It argued that Holder's claims do not fall within the limited waiver of governmental immunity provided in the Texas Tort Claims Act ("TTCA"). TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-.009 (Vernon 1986 & Supp.1997). The trial court granted the City's motion to dismiss for lack of jurisdiction on November 6, 1995, the same date it granted Mellon's motion for summary judgment.

II. Summary Judgment

In Holder's first point of error, she asserts generally that the trial court erred in granting Mellon's motion for summary judgment. This single, broad point is sufficient to preserve error on all grounds for summary judgment raised by Mellon. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

A. Standard of Review

In reviewing a summary judgment, we take the evidence favorable to the non-movant as true and indulge every reasonable inference in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When a trial court does not specify the grounds upon which it grants a summary judgment, as here, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Summary judgment for the defendant is proper when the proof shows that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). In other words, a defendant must disprove, as a matter of law, one of the essential elements of a plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

B. Facts

We review the facts under the appropriate standard of review for summary judgments, taking evidence favorable to the non-movant as true. See Nixon, 690 S.W.2d at 548-49. Mellon has owned the garage since at least 1989, and controlled and operated it since October 1, 1992, when it canceled its previous management contract with Allright Parking. The garage is not a public garage and is used for Mellon's employees during normal business hours. Peter Rzasnicki, Mellon's CEO, made the decision that Mellon would take over control of the garage. Rzasnicki placed Curtis Oblinger in charge of the garage, even though he had no prior experience in operating a parking facility. Mellon did not make efforts to investigate crime in the area or to determine whether additional security measures were needed at the garage.

Holder provided summary judgment proof to support her contention that the garage is in a high crime area. Her evidence consisted of, among other matters, HPD's crime statistics showing that from January 1, 1990 through the date of the incident, 190 violent crimes, including murders, rapes, robberies, and aggravated assaults, were reported within a quarter-mile radius of the garage. Holder contends that because of this evidence of previous crimes, the assault on her was foreseeable, creating a duty for Mellon to take steps to prevent such an attack.

Oblinger acknowledged in his deposition testimony that he had known since Mellon took over responsibility for the garage on October 1, 1992, that parking garages in Houston are inherently susceptible to criminal activity. He acknowledged that on weekends, from 11:45 p.m. on Fridays until 6:00 a.m. on Mondays, there were no security guards at the garage, although Mellon arranged for an armed guard from 6:00 a.m. to 11:00 p.m. Monday through Friday. In addition, an off-duty police officer randomly patrolled the garage during business hours. Potter, however, was never employed by Mellon nor did he act under its supervision and control. During the times the garage was not in use by Mellon employees on nights and weekends, there were no security gates, no chained or fenced entrances, and no barriers to pedestrian or vehicular traffic. Oblinger knew beer drinkers frequented the garage on weekends by the beer bottles found on Monday mornings. It was also apparent that people were sleeping in the stairwells from blankets and rolled up newspapers found there. Oblinger acknowledged that a chain costing between $10 to $20 could have prevented vehicular entry. In fact, Mellon began chaining the entrances to the garage in July 1993, several months after the assault on Holder.

John Hilliard, a Mellon employee, testified by deposition that his jeep was stolen out of the garage in October 1992. Hilliard sent a memo to Oblinger, among others, on or about October 27, 1992, expressing his concern about a "drastic increase in crime in the surrounding area" in the previous six months. Hilliard had heard rumors of criminal activity, including reports of violent crime in the surrounding area, from other Mellon employees. He proposed a plan for increased security. Oblinger never responded to Hilliard's memo.

Holder also furnished a copy of an e-mail sent to Oblinger and others from Cathleen Hackward, another Mellon employee. Hackward wrote to "lodge a formal complaint about the virtually non-existent security for our parking garage since Mellon took over the job." She wrote that "people are free to roam through there, obviously committing crimes," and she was concerned for her personal safety. Hackward also testified by deposition that she had Mellon's security guard escort her to the garage when she worked late because she did not consider it safe to go to the garage alone.

Oblinger's affidavit stated that Mellon was unaware of any violent crimes occurring in the garage before this incident and that to his knowledge only two instances of car theft had been reported. Oblinger also testified the garage is well-lighted at all times. In addition, Mellon provided undisputed testimony that neither Holder nor Potter had permission to be in the garage at the time of the assault.

C. Negligence Per Se

We first address Holder's contention that the trial court erred in granting summary judgment for Mellon because it was negligent as a matter of law. She contends Mellon, by leaving its garage unsecured, violated the Ordinance against dangerous buildings that was designed to protect the public, of which she is a member. Mellon denies that the Ordinance is applicable to its...