Knorpp v. Hale, 06-98-00006-CV

• Court: Court of Appeals of Texas
• Citation: 981 S.W.2d 469
• Docket Number: No. 06-98-00006-CV,06-98-00006-CV
• Parties: Bonita KNORPP, Individually and as Administratrix of The Estate Of Todd Winston Erwin, Deceased, Appellant, v. Michael HALE and Reeda Hale, Appellees.
• Decision Date: 22 October 1998

Page 469

981 S.W.2d 469 Bonita KNORPP, Individually and as Administratrix of The
Estate Of Todd Winston Erwin, Deceased, Appellant,
v.
Michael HALE and Reeda Hale, Appellees. No. 06-98-00006-CV. Court of Appeals of Texas,
Texarkana. Submitted Oct. 6, 1998.
Decided Oct. 22, 1998.

Page 470

Matt Keil, Keil & Goodson, Texarkana, AR, for appellant.

John R. Mercy, Atchley, Russell, Waldrop, Texarkana, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

GRANT, Justice.

Bonita Knorpp appeals from a directed verdict in a premises liability case. Knorpp contends that the trial court erred by finding her son, Todd Erwin, to be a licensee rather than an invitee at the time of his death and by rendering a directed verdict against her claim for damages.

Page 471

The decedent, Todd Erwin, was killed while cutting down a tree at the Hales' house. The evidence shows that he had moved to Texarkana to be near the Hales' daughter Autumn, who he had been dating for about a year, and that he spent a great deal of time at their house. The Hales were planning a New Year's Eve bonfire at a location in a pasture near their house around the base of a dead pine tree. They decided to cut down the tree. Erwin went to the house on December 6, 1994, took the Hales' chain saw, and began to cut down the tree. After about forty-five minutes, the tree fell in an unexpected direction and landed on Erwin, killing him.

There was evidence that Erwin had worked with his stepfather cutting and trimming trees. The stepfather testified that Erwin did not cut the tree properly. He testified that the vertical distance between Erwin's front and back cuts was too great; that Erwin should have used a rope to pull the tree in a particular direction and should have used wedges to direct the tree's fall.

When Knorpp completed the presentation of her evidence, the trial court granted the landowner's motion for a directed verdict and ruled as a matter of law that Hale was a licensee and that there was no evidence that the landowners were negligent under applicable standards for a licensee.

Knorpp contends that the trial court erred in determining that there was no evidence that Erwin was an invitee and that the court therefore erred by rendering a directed verdict. Knorpp further contends that there was evidence that Erwin was an invitee on this particular day when he came onto the property.

We review a trial court's directed verdict de novo. Graham v. ARCO, 848 S.W.2d 747, 750 (Tex.App.--Corpus Christi 1993, writ denied). When reviewing a directed verdict, we consider all of the evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences, and giving the losing party the benefit of all reasonable inferences raised by the evidence. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302 (Tex.1988). If there is any evidence of probative force to raise a fact issue on a material question, the issue must go to the jury, and a directed verdict is improper. Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948); Parks v. DeWitt Co. Elec. Coop., Inc., 962 S.W.2d 707, 710 (Tex.App.--Corpus Christi 1998, no pet.).

The owner/operator of property owes the highest degree of care to an invitee. An invitee has been described as one who enters on another's land with the owner's knowledge and for the mutual benefit of both. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975), citing RESTATEMENT (SECOND) OF TORTS § 332 (1965); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); see Dabney v. Wexler-McCoy, Inc., 953 S.W.2d 533, 536 (Tex.App.--Texarkana 1997, pet. denied); Silva v. Spohn Health Sys. Corp. d/b/a Spohn Hosp., 951 S.W.2d 91 (Tex.App.--Corpus Christi 1997, writ denied).

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex.App.--San Antonio 1988, writ denied), quoting RESTATEMENT (SECOND) OF TORTS § 330 (1965). ¹ Thus, a licensee is one who enters with permission of the landowner, but does so for his own convenience or on business for someone other than the owner. Smith v. Andrews, 832 S.W.2d 395, 397 (Tex.App.--Fort Worth 1992, writ denied).

A landowner owes an invitee a duty to exercise ordinary care to protect him from risks of which the owner is actually aware and those risks of which the owner should be aware after reasonable inspection. Motel 6 G. P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996). To recover, a plaintiff must plead and prove that the landowner (1) had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an

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unreasonable risk of harm; (3) that the landowner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the landowner's failure to use such care proximately caused the plaintiff's injuries. Lopez, 929 S.W.2d at 3; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex.App.--Texarkana 1998, no pet.).

The duty that an owner owes to a licensee is to not injure him by "willful, wanton or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not." State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992). In order to establish liability, a licensee must prove (1) that a condition of the premises created an unreasonable risk of harm to him; (2) that the owner actually knew of the condition; (3) that the licensee did not actually know of the condition; (4) that the owner failed to exercise ordinary care to protect the licensee from danger; ² and (5) that the owner's failure was a proximate cause of injury to the licensee. Id. at 237.

In the present case, it is admitted by all that Erwin was a regular visitor to the Hales' house, that he had his own key to the house and came and went unsupervised, and that he was looked on as a likely son-in-law. He was clearly invited onto the property. Thus, it would appear that he should be defined as an "invitee." ³ This is not, however, the case. In Texas, a "social guest" is classified as a licensee. Dominguez, 746 S.W.2d 865; McKethan v. McKethan, 477 S.W.2d 357, 361 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.); Weekes v. Kelley, 433 S.W.2d 769 (Tex.Civ.App.--Eastland 1968, writ ref'd n.r.e.); Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.). ⁴ As set out above, a host owes a social guest a duty not to...