Kendrick v. Allright Parking

• Decision Date: 31 December 1992
• Docket Number: No. 04-92-00044-CV,04-92-00044-CV
• Citation: 846 S.W.2d 453
• Parties: Suzette KENDRICK, Appellant, v. ALLRIGHT PARKING, Allright San Antonio Parking, Inc., and Allright Parking Texas, Inc., Appellees.
• Court: Texas Court of Appeals

Page 453

846 S.W.2d 453

Suzette KENDRICK, Appellant, v. ALLRIGHT PARKING, Allright San Antonio Parking, Inc., and Allright Parking Texas, Inc., Appellees.

No. 04-92-00044-CV.

Court of Appeals of Texas San Antonio.

Dec. 31, 1992.

Rehearing Denied Jan. 28, 1993.

Russell H. McMains, Kimberley Hall Seger, Anthony F. Constant, Corpus Christi, Joyce W. Moore, Garza, Moore & Lazor, P.C., San Antonio, for appellant.

William L. Powers, Cathy J. Sheehan, Isidro O. Castanon, Plunkett, Gibson & Allen, Inc., San Antonio, for appellees.

Before BUTTS, CHAPA and CARR, JJ.

OPINION

CHAPA, Justice.

The opinion of October 30, 1992 is withdrawn and the following is substituted. Appellant, Suzette Kendrick, appeals a summary judgment order granted in favor of appellees, Allright Parking, Allright San Antonio Parking, Inc., and Allright Parking Texas, Inc. The single issue before this court is whether the trial court erred in granting appellees' motion for summary judgment.

FACTUAL BACKGROUND

The facts of this case reveal that appellant parked her car on an Allright parking lot in downtown San Antonio on August 28, 1988. While moving some items from her trunk to the front seat of her car, appellant was suddenly attacked by a man who pushed her into her car and kidnapped her by driving the car out of the parking lot. Appellant was forcibly taken to a separate location where she was raped.

Appellant subsequently filed a suit against appellees for negligence for "failing to provide security to its invitees against assaults, failing to provide security instruction to its employees, failing to warn its invitees of the lack of any security, failing to warn its invitees of the potential for such assaults and alternatively failing to inspect the property and determining the dangers of assault on the property."

Appellees filed a motion for summary judgment, claiming that they owed no duty to protect appellant because they "did not have reason to believe from what they had observed or from past experience that such acts were occurring or were about to occur ... that would pose imminent probability of harm to an invitee...." The trial court granted the summary judgment accordingly. Appellant contends that the summary judgment order was improper because issues of facts exist on whether appellees' owed a duty to appellant.

STANDARD OF REVIEW

The standard of review in a summary judgment case is whether the movant met his burden for summary judgment by establishing there exists no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 548-49. Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubt will be resolved in his favor. Id. at 549.

The defendant's burden of proof in a summary judgment is to show as a matter of law that the plaintiff has no cause of action against him. Citizens First Nat'l Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967). A defendant may accomplish this by disproving that there is no genuine issue of fact as to at least one of the essential elements of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991).

DUTY

Although the summary judgment in this case was not granted on specific grounds, it is clear from the record that appellees successfully attacked appellant's cause of action on the issue of duty, which is one of the key elements of a negligence action. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984).

Appellant claims on appeal that questions of fact exist with respect to the foreseeability of harm, which in this case may have imposed upon appellees a duty of care. In contrast, appellees argue they were charged with no duty to protect their business invitees from harm because they had no reason to believe from what they observed or from past experience that such criminal acts were occurring or about to occur.

Generally, an occupier of a business premises is not liable to his customer invitees for the criminal acts of third persons. Nixon, 690 S.W.2d at 550. However, several courts have held that the owner of a business has a duty in some situations to protect his customers from criminal attacks of third persons because of the special relationship that exists between the business invitor and the customer invitee. See, e.g., Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.); Eastep v. Jack-In-The-Box, Inc., 546 S.W.2d 116, 118 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.); Morris v. Barnette, 553 S.W.2d 648, 649 (Tex.Civ.App.-Texarkana 1977, writ ref'd n.r.e.).

Such a duty has arisen in the context of a parking facility operator vis-a-vis his customer invitees. See Allright, Inc. v. Pearson, 711 S.W.2d 686, 689 (Tex.App.--Houston [1st Dist.] 1986), aff'd in part and rev'd in part on other grounds, 735 S.W.2d 240 (Tex.1987); Ronk v. Parking Concepts of Texas, Inc., 711 S.W.2d 409, 414 (Tex.App.--Fort Worth 1986, writ ref'd n.r.e.).

Appellees asserted in their motion for summary judgment and in their brief on appeal that they owed no duty to appellant under the test of liability expressed in Ronk. The court in Ronk held:

the operator of an open-air parking lot owes a duty to protect his business invitees from intentional injuries caused by third parties if the operator has reason to believe from what he has observed or from past experience that such acts are occurring, or that there is a likelihood that such acts are about to occur, on the part of third persons which is likely to endanger the safety of the business invitee. [Emphasis added.]

Id. at 414.

The Ronk v. Parking Concepts standard was criticized as too restrictive in the case of Garner v. McGinty, 771 S.W.2d 242, 246 (Tex.App.--Austin 1989, no writ), in which the court preferred to examine its case under a test governing the duty to protect invitees when the invitor knows or has reason to know from past experience or from his own observations that the business is likely to attract crime.

In Garner, the court held:

a business invitor owes a duty to his business invitees to take reasonable steps to protect them from intentional injuries caused by third parties if he knows or has reason to know, from what he has observed or from past experience, that criminal acts are likely to occur, either generally or at some particular time. [Emphasis added].

Id. This rule mirrors the principle set forth in other cases in which the business in issue was prone to attract crime because of the particular character of the business or its previous experience. See Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.); Morris v. Barnette, 553 S.W.2d 648, 649 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e.). Cf. Allright, Inc. v. Pearson, 711 S.W.2d 686, 690 (Tex.App.--Houston [1st Dist.] 1986), aff'd in part and rev'd in part on other grounds, 735 S.W.2d 240 (Tex.1987).

Garner, Walkoviak, and Morris derive their tests from Section 344 of the Restatement (Second) of Torts, which reads:

Business Premises Open to Public: Acts of Third Persons or Animals

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. [Emphasis added.]

Restatement (Second) of Torts § 344 (1965).

To further explain this rule, Garner, Walkoviak, and Morris have also adopted or referred to the language of Comment f of Section 344, which provides:

Duty to police premises. 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 particular 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. [Emphasis added.]

Restatement (Second) of Torts § 344 cmt. f (1965).

In the context of this case, wherein the summary judgment evidence suggests, and appellees even admit, that the nature of this business was prone to attract criminal activity, we examine the issue of duty in light of the cases of Garner, Walkoviak, and Morris.

ANALYSIS

The question this court first addresses is whether appellees' summary judgment evidence conclusively establishes that appellees did not know or could not have known from their past experience or from the character of their business that criminal acts like those...