McCall v. Hillis
| Decision Date | 22 August 2018 |
| Docket Number | No. 04-17-00410-CV,04-17-00410-CV |
| Citation | 562 S.W.3d 98 |
| Parties | Henry MCCALL, Appellant v. Homer HILLIS, Appellee |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY: Henry McCall, 1815 Presidential Heights #628, Colorado Springs, CO 80905.
APPELLEE ATTORNEY: W. David Farmer, Curney, Farmer, House, Osuna & Jackson, P.C., 411 Heimer Road, San Antonio, TX 78232-4854.
Sitting: Marialyn Barnard, Justice, Patricia O. Alvarez, Justice, Irene Rios, Justice
This is an appeal from a summary judgment in favor of appellee Homer Hillis in a premises liability action. On appeal, appellant Henry McCall contends the trial court erred in granting summary judgment in favor of Hillis, arguing Hillis failed to prove as a matter of law that he owed no duty to McCall based on the doctrine of ferae naturae. We reverse the trial court’s summary judgment and remand to the trial court for further proceedings.
Hillis owns property in Fredericksburg, Texas. Hillis operated a bed and breakfast ("B&B") on the property. In addition to the structure out of which Hillis operated the B&B, there was a cabin located on the property about 75 to 100 feet from the B&B. McCall leased the cabin from Hillis. According to McCall, he was permitted to use the B&B, and ultimately, "both voluntarily and at the request of" Hillis, undertook "simple jobs" at the B&B, e.g., opening doors and ensuring the residence was in "good working order." McCall asserted that several times, while helping out at the B&B, he noticed brown recluse spiders inside the B&B. McCall claimed he periodically alerted Hillis about the spiders. McCall asserted the only action taken by Hillis was to inform the housekeeper; Hillis took no other steps to address the spider issue. Ultimately, while McCall was performing some maintenance work inside the B&B, he was bitten by a brown recluse spider.
After he was bitten, McCall brought a premises liability action against Hillis. Hillis filed a traditional motion for summary judgment. In his motion, Hillis alleged that as a matter of law he owed no duty to McCall "to prevent or warn of those dangers which allegedly caused [McCall’s] injuries." Hillis relied upon the doctrine of ferae naturae to support his contention that he owed no duty to McCall. The trial court granted summary judgment in favor of Hillis. McCall timely perfected this appeal.
McCall contends the trial court erred in granting summary judgment in favor of Hillis because he failed to prove as a matter of law that he did not owe McCall a duty to make the property safe or to warn of the existence of spiders on the property. Hillis contends the doctrine of ferae naturae supports the trial court’s summary judgment in his favor.1
We review a traditional summary judgment under a de novo standard of review. First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015) ); Rodriguez v. Lockhart Contracting Servs., Inc. , 499 S.W.3d 48, 52 (Tex. App.—San Antonio 2016, no pet.). A traditional summary judgment motion is properly granted when the movant establishes there are no genuine issues of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) ; Cantey Hanger , 467 S.W.3d at 481 ; Rodriguez , 499 S.W.3d at 52. A movant meets this burden by either conclusively negating a single essential element of the plaintiff’s cause of action or establishing an affirmative defense. Frost Nat'l Bank v. Fernandez , 315 S.W.3d 494, 508–09 (Tex. 2010). In reviewing a summary judgment, we must take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Parker , 514 S.W.3d at 219 (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) ); Cantey Hanger , 467 S.W.3d at 481.
A person injured on the property of another may have a premises-liability claim against the property owner if the person is injured as a result of the property’s condition. Occidental Chem. Corp. v. Jenkins , 478 S.W.3d 640, 644 (Tex. 2016). "Under premises-liability principles, a property owner generally owes to those invited onto the property a duty to make the premises safe or to warn of dangerous conditions as reasonably prudent under the circumstances."2 Jenkins , 478 S.W.3d at 644 ; see Austin v. Kroger Tex., L.P. , 465 S.W.3d 193, 202 (Tex. 2015). In other words, a landowner—under premises-liability principles—must " ‘use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner ... knows about or in the exercise of ordinary care should know about.’ " United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 471 (Tex. 2017) (quoting Timberwalk Apartments, Partners, Inc. v. Cain , 972 S.W.2d 749, 753 (Tex. 1998) ). Whether a duty exists in a premises-liability case is a question of law for the court to decide from the facts surrounding the occurrence in question. Allen Keller Co. v. Foreman , 343 S.W.3d 420, 425 (Tex. 2011) (citing Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 767 (Tex. 2010) ); Gen. Elec. Co. v. Moritz , 257 S.W.3d 211, 217 (Tex. 2008) ; Nicholson v. Smith , 986 S.W.2d 54, 62 (Tex. App.—San Antonio 1999, no pet.).
There are, however, instances in which a landowner owes neither a duty to warn nor make safe. In this case, Hillis relied on the common-law doctrine of ferae naturae. See Union Pac. R.R. Co. v. Nami , 498 S.W.3d 890, 897 (Tex. 2016) ; see generally RESTATEMENT (SECOND) OF TORTS , §§ 506 – 507 (Am. Law Inst. 1977). Under the doctrine of ferae naturae , a property owner is not generally liable for harm caused by indigenous wild animals on his property. Nami , 498 S.W.3d at 897. Owners are not generally liable for injuries caused by wild animals because they are not predictable or controllable, and therefore, neither the property nor responsibility of the property owner. Id. The doctrine was recently explained by the supreme court:
Under the doctrine of ferae naturae , a landowner is not liable for the acts of wild animals occurring on the owner’s property unless the landowner actually reduced indigenous wild animals to possession or control or introduced nonindigenous animals into the area. A premises owner may not be held to a standard of anticipating or guarding against the presence of animals ferae naturae in relation to invitees unless the owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto the premises wild animals not indigenous to the locality. The landowner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found, that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.
Id. (quoting 3B C.J.S. Animals § 325 (2016) ). Property owners are excused under the doctrine from general duties to warn and make safe because ordinarily, "the property owner is no better able to protect an invitee than the invitee is to protect himself." Id. However, a property owner may have a duty—even when the plaintiff’s injury results from an animal ferae naturae —if the wild animal is in "artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it." Nicholson v. Smith , 986 S.W.2d 54, 62 (Tex. App.—San Antonio 1999, no pet.).
In Nicholson , this court distinguished between liability for injuries sustained from wild animals in their natural habitat and injuries sustained from wild animals in artificial structures. Id. at 60–64. In that case, Nicholson and his wife rented space at a south Texas recreational park owned by the Smiths. Id. at 57. Approximately a week after setting up camp in the park, Nicholson was attempting to correct the stabilizer on the underside of his house trailer. Id. While attempting the repair, Nicholson was stung more than a thousand times by fire ants. Id. Nicholson subsequently passed away. Id. His wife brought several claims against the Smiths, including a premises liability action. Id. The Smiths moved for summary judgment on the ground that they did not owe a duty to Nicholson with respect to the fire ants. Id. Specifically, they argued the doctrine of ferae naturae abrogated any duty they had to Nicholson, who was an invitee. Id. at 59. The trial court granted the Smiths' motion for summary judgment. Id. at 57.
On appeal, we affirmed the summary judgment in favor of the Smiths. Id. at 64. We held the Smiths were entitled to summary judgment under the doctrine of ferae naturae , reasoning that Nicholson was attacked by indigenous wild animals in their natural habitat, in the normal course of their existence ... [and] [t]he Smiths did nothing to cause the fire ants to act outside of their expected and normal behavior." Id. at 62. However, and as is important in this case, we declined to say that a landowner could never be negligent with regard to the indigenous wild animals found on his property. Id. Rather, we specifically held a landowner could be negligent with regard to ferae naturae "found in artificial structures or places where they are not normally found;" that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises and cannot expect patrons to realize the danger or guard against it." Id. (citations omitted). Thus, contrary to Hillis’s assertion, the issue may well be whether the bite from the...
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