Lee v. Loftin

• Decision Date: 30 January 2009
• Docket Number: No. 12-07-00143-CV.,12-07-00143-CV.
• Citation: 277 S.W.3d 519
• Parties: Janice LEE and Bob Lee, Appellants, v. Terry LOFTIN, Appellee.
• Court: Texas Court of Appeals

277 S.W.3d 519

Janice LEE and Bob Lee, Appellants, v. Terry LOFTIN, Appellee.

No. 12-07-00143-CV.

Court of Appeals of Texas, Tyler.

January 30, 2009.

Rehearing Overruled March 3, 2009.

Douglas J. McCarver, Douglas McCarver, Nacogdoches, TX, for Appellant.

Robert T. Cain, Jr., Joseph M. McElroy, Zeleskey, Cornelius, Hallmark, Roper & Hicks, PLLC, Lufkin, TX, for Appellee.

OPINION

JAMES T. WORTHEN, Chief Justice.

Janice Lee and her husband, Bob Lee, appeal the trial court's order granting summary judgment in a lawsuit brought by the Lees against Terry Loftin. The Lees raise six issues on appeal. We reverse and remand.

BACKGROUND

The Lees filed a lawsuit against Loftin for injuries Janice Lee sustained while riding one of Loftin's horses on a trail ride with Loftin. Loftin filed a traditional motion for summary judgment, arguing that chapter 87 of the Texas Civil Practice and Remedies Code barred the Lees' lawsuit. The trial court granted Loftin's motion by written order. This appeal followed.

SUMMARY JUDGMENT

In their first issue, the Lees assert that the summary judgment evidence did not warrant the trial court's grant of summary judgment under chapter 87. Loftin asserts, as she did at summary judgment, that section 87.003 of chapter 87 precludes liability for the damages incurred as a result of Janice Lee's injury.

Standard of Review

Rule 166a(c) governs traditional motions for summary judgment and provides as follows:

Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor.... The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response....

TEX.R. CIV. P. 166a(c).

We review a trial court's grant of summary judgment de novo. Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). Generally, when conducting a de novo review, a reviewing court exercises its own judgment and redetermines each issue of fact and law. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). However, in the context of a summary judgment, we must examine the entire summary judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 782 (Tex.2007).

For a party to prevail on a traditional motion for summary judgment, it must conclusively establish the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). A fact is "material" if it affects the ultimate outcome of the lawsuit under the governing law. Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex.App.-Tyler 2007, pet. denied). A material fact issue is "genuine" if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving party. Pierce, 226 S.W.3d at 714; see Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (per curiam) (appellate court reviewing a summary judgment must consider whether reasonable and fair minded jurors could differ in their conclusions). Evidence is conclusive only if reasonable and fair minded jurors could not differ in their conclusions. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755-56 (Tex. 2007) (per curiam) (citing Spates, 186 S.W.3d at 568). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. Pierce, 226 S.W.3d at 714 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979)).

In an appeal of a summary judgment proceeding, our review is a limited one. "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX.R. CIV. P. 166a(c) (emphasis added). When reviewing a summary judgment, courts of appeals should consider all summary judgment grounds ruled on by the trial court and preserved for appellate review that are necessary for final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). However, an appellate court may, in the interest of judicial economy, consider other grounds that the movant preserved for review, despite the fact that the trial court did not rule on them. Id.

The construction of a statute is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex.2001) (orig.proceeding). Therefore, we review a trial court's interpretation of a statute de novo. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 561 (Tex.App.-Tyler 2007, pet. denied). In our construction of the applicable statutes in this case, we must apply the relevant rules of statutory construction found within the Texas Code Construction Act (chapter 311 of the Texas Government Code) and the common law. Compare TEX. GOV'T CODE ANN. § 311.002(1) (Vernon 2005) with TEX. CIV. PRAC. & REM.CODE ANN. § 1.001 (Vernon 2002) and TEX. CIV. PRAC. & REM.CODE ANN. § 1.002 (Vernon 2002). In following the common law, "[w]e must construe statutes as written and, if possible, ascertain legislative intent from the statute's language." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

Equine Activity Act

The portions of chapter 87 relevant to our review are sections 87.001 through 87.005, now referred to as the "Equine Activity Act."¹ See, e.g., Robert Fugate, Survey of Texas Animal Torts, 48 S. TEX. L.REV. 427, 460 (2006) (referring to these sections as the "Equine Activity Act"). Section 87.003 of the Act reads as follows:

Limitation on Liability

Except as provided by Section 87.004, any person, including an equine activity sponsor, equine professional, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in an equine activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of an equine activity or the showing of an animal on a competitive basis in a livestock show, including:

(1) the propensity of an equine or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;

(2) the unpredictability of an equine or livestock animal's reaction to sound a sudden movement, or an unfamiliar object, person, or other animal;

(3) with respect to equine activities, certain land conditions and hazards, including surface and subsurface conditions;

(4) a collision with another animal or an object; or

(5) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over the equine or livestock animal or not acting within the participant's ability.

TEX. CIV. PRAC. & REM.CODE ANN. § 87.003 (Vernon 2005).²

The legislature's enactment of section 87.003, as part of the Equine Activity Act, altered the existing common law to provide for the application of the "inherent risk" doctrine, a version of the "assumption of the risk" doctrine, to matters set forth within section 87.003's purview.³ See Chrismon v. Brown, 246 S.W.3d 102, 115 n. 15 (Tex.App.-Houston [14th Dist.] 2007, no pet.); see also Chrismon, 246 S.W.3d at 119 n. 9 (Edelman, S.J., dissenting). Generally, the inherent risk doctrine is understood to provide that "co-participant and nonparticipant defendants owe no duty to protect a participant from risks inherent in the sport or activity in which he has chosen to take part." Sw. Key Program, Inc v. Gil-Perez, 81 S.W.3d 269, 272 (Tex.2002) (citing Phi Delta Theta Co. v. Moore, 10 S.W.3d 658, 663 (Tex.1999) (Enoch, J., dissenting from decision to deny petition for review)).

Applying this doctrine in the context of section 87.003, an equine activity sponsor does not owe a duty to protect a participant from risks inherent to the activity in which the participant has chosen to take part.⁴ See Sw. Key, 81 S.W.3d at 272; Chrismon, 246 S.W.3d at 111. Therefore, if a plaintiff's injury is caused in a manner consistent with the risks inherent to the particular equine activity in which the plaintiff chose to participate, the defendant will be deemed to have owed the plaintiff no duty. See Phi Delta Theta, 10 S.W.3d at 662; Chrismon, 246 S.W.3d at 111. While it may be necessary to first submit various disputed questions of fact to a jury, the question of whether a duty was owed to the plaintiff by the defendant is a question of law for the trial court to decide. See St. John v. Pope, 901 S.W.2d 420, 424 (Tex.1995); see also Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633, 640 (Tex.App.-Austin 2003, pet. dism'd); cf. Chrismon, 246 S.W.3d at 112; Kolb v. Tex. Employers' Ins. Ass'n, 585 S.W.2d 870, 873 (Tex.Civ.App.-Texarkana 1979, writ ref'd n.r.e.); Griffin T. Pivateau, Tackling the Competitive Sports Doctrine: A New Proposal for Sports Injuries in Texas, 9 TEX. REV. ENT. & SPORTS L. 85, 119-20 (2007).

The risk of injury, in varying degrees, is inherent in every sport or recreational activity. Phi Delta Theta, 10 S.W.3d at 662; see Pivateau, Tackling the Competitive Sports Doctrine, 9 TEX. REV. ENT. & SPORTS L. at 119. This is true regardless of whether the sport or activity is organized or unorganized,...