Lively v. Adventist Health System/Sunbelt, Inc., No. 2-02-418-CV (TX 7/29/2004)

Decision Date29 July 2004
Docket NumberNo. 2-02-418-CV.,2-02-418-CV.
PartiesGINA LIVELY AND ROBERT LIVELY, Appellants v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a HUGULEY MEMORIAL MEDICAL CENTER, Appellee.
CourtTexas Supreme Court

Appeal from the 236th District Court of Tarrant County.

PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.

MEMORANDUM OPINION1

ANNE GARDNER, Justice.

This is a premises liability case arising from an alleged carjacking, abduction, and sexual assault. Appellants Robert and Gina Lively appeal from a judgment granting a directed verdict in favor of Appellee, Adventist Health System/Sunbelt, Inc. d/b/a Huguley Memorial Medical Center (the Hospital). Appellants complain in three issues that the trial court erred in granting a directed verdict on their causes of action for premises liability based on negligence and breach of implied warranty, and that the trial court abused its discretion in overruling their motion to reopen or for mistrial and in refusing to grant a new trial and sanctions. We will affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Gina Lively, a nurse employed by the Hospital, was found wandering in San Antonio in a park near the Alamo on February 13, 2000. Gina had no memory of her identity or the events of the morning when she was found. As her memory returned, she recorded her recollections in a diary. According to her diary, at approximately 7:00 a.m. on the morning of February 12, 2000, she had been driving to work at the Hospital in Forth Worth and had turned onto Medpark Drive, a road on the Hospital's premises leading to the parking lots, when she was accosted by four or five Hispanic men in gang attire, including bandanas. One appeared to have an injured leg. She stopped and exited her van to offer aid, whereupon they forced themselves into her vehicle, abducted her, and serially sexually assaulted her at a rest-stop south of the Hospital on Interstate 35 before proceeding to San Antonio, where she either escaped or was released. Her van was found in San Antonio, but the attackers were never identified or apprehended.

Gina and her husband Robert sued the Hospital, alleging negligence and gross negligence in failing to provide a reasonably safe premises by failing to maintain adequate security for its employees. They also alleged negligent misrepresentation and breach of an implied warranty of safe premises. Gina alleged damages for traumatic brain injury, emotional trauma and resultant traumatic stress disorder, diminution of memory, physical and emotional pain and suffering, and exemplary damages. Robert also sought damages for lost wages while caring for Gina at home.

The trial began on August 13, 2002 and spanned five days, during which Appellants presented testimony in support of their claims. John Marcus Wood, Facilities Manager of the Hospital, and his immediate superior, Kent Tucker, testified regarding security services provided by the Hospital and criminal activity on the premises. Appellants also presented testimony of former employees regarding incidents of crime or assaults on the Hospital premises. Appellants relied on the expert testimony of Stephen R. Bell, formerly employed for thirty-four years by the City of Dallas as a police officer and now employed as a security consultant with the International Association of Chiefs of Police and the Texas Department of Criminal Justice.

Appellants rested on August 19, 2002, subject to calling Gina's treating psychologist. The Hospital then moved for a directed verdict on seven grounds: (1) exclusivity of worker's compensation insurance as Appellants' sole remedy; (2) no clear and convincing evidence of malice to support exemplary damages; (3) no cause of action in Texas for breach of implied warranty of safety of the premises; (4) no evidence of negligent misrepresentations of safety of the premises; (5 and 6) no evidence of cause-in-fact or foreseeability as the two elements of proximate cause to support Appellants' cause of action for negligence; and (7) no cause of action for lost wages of Robert.

The following morning, August 20, 2002, Appellants moved to reopen and for a mistrial. The trial court overruled those motions and granted the Hospital's motion for directed verdict on all grounds presented, except the worker's compensation exclusivity defense. Following rendition of judgment, Appellants filed a motion for new trial and for sanctions, which the trial court denied after a hearing.

II. THE DIRECTED VERDICT

A directed verdict is proper when no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Ray v. McFarland, 97 S.W.3d 728, 730 (Tex. App.-Fort Worth 2003, no pet.); see also TEX. R. CIV. P. 268. A directed verdict for a defendant may be proper if (1) the plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right to recover or (2) the evidence conclusively establishes a defense to the plaintiff's cause of action. Prudential Ins. Co., 29 S.W.3d at 77.

In reviewing a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was rendered, disregard all evidence and inferences to the contrary, and give the nonmovant the benefit of all inferences arising from the evidence. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994); Qantel Bus. Sys. V. Custom Controls, 761 S.W.2d 302, 303-04 (Tex. 1988). If we determine that any evidence, more than a scintilla, raises a fact issue on any material question presented, then the directed verdict is improper. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Szczepanik, 883 S.W.2d at 649; Coronado v. Schoenmann Produce Co., 99 S.W.3d 741, 746 (Tex. App.-Houston [14th Dist.] 2003, no pet.), disapproved in part on other grounds by Wingfoot Enters.v. Alvarado, 111 S.W.3d 134, 149 (Tex. 2003) . More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Minyard Food Stores v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002).

A. Negligence

In their first issue, Appellants complain that the trial court erred in granting the directed verdict based on no evidence of the foreseeability component of proximate cause as to their alleged negligence. Appellants recognize that their cause of action for negligence is based upon premises liability for failing to remedy an unreasonable risk of harm due to a condition of the premises. See Timberwalk Apartment Partners, Inc. v. Cain, 972 S.W.2d 749, 757 (Tex. 1998) (holding a complaint that an owner failed to provide adequate security against criminal conduct is ordinarily a premises liability claim).

Liability in negligence requires a duty, breach of the duty, and damages proximately caused by that breach. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Preliminarily, we note that, as an employee of the Hospital, Gina would be classified as an "invitee" on its premises. Guerrero v. Mem'l Med. Ctr. of E. Tex., 938 S.W.2d 789, 791 (Tex. App.-Beaumont 1997, no pet.) (citing Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex. 1963)). An owner or occupier in control of premises generally must exercise reasonable care to make the premises safe for the use of invitees. Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Ordinarily, this duty does not include preventing criminal acts of third parties over whom the premises owner has no control. Id.; see also Timberwalk, 972 S.W.2d at 756; Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996);Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). An exception is that an owner or occupier of land does have a duty to protect invitees from criminal acts of third parties if it knows or has reason to know of an unreasonable and foreseeable risk of harm. Timberwalk, 972 S.W.2d at 756; Lefmark, 946 S.W.2d at 53; Centeq Realty Co. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

The Hospital contends that the trial court granted the directed verdict as to negligence based not only on there being no evidence of foreseeability, but also because Appellants failed to produce any evidence of cause-in-fact. The Hospital points out that because Appellants have not complained of error in granting the directed verdict on the element of cause-in-fact, we may uphold the directed verdict on negligence on the basis that Appellants failed to produce any evidence of cause-in-fact.

In their reply brief, Appellants disagree with the Hospital's characterization of the trial court's basis for the directed verdict, contending the trial court limited its directed verdict to foreseeability, not cause-in-fact, and that it could not have granted the directed verdict on cause-in-fact because it would have been reversible error to do so when Appellants had only rested "subject to" calling their treating psychologist. Appellants argue that the treating psychologist could have furnished opinions as to causation of Gina's injuries. Appellants correctly argue that it is generally reversible error to grant a directed verdict before a plaintiff has rested. See, e.g., Wedgeworth v. Kirksey, 985 S.W.2d 115, 116-17 (Tex. App.-San Antonio 1998, pet. denied) (refusing to apply harmless error test for directed verdict before plaintiff had rested); Nassar v. Hughes, 882 S.W.2d 36, 37 (Tex. App.-Houston [1st Dist.] 1994, writ denied); Buckner v. Buckner, 815 S.W.2d 877, 878 (Tex. App.-Tyler 1991, no writ).

We may uphold a directed verdict even if the trial court's rationale was erroneous, provided the directed verdict can be supported on another basis. Kingston v. Helm, 82 S.W.3d 755, 758 (Tex. App.-Corpus Christi 2002, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 442-43 (Tex. App.-Dallas 2002, pet....

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