Morris v. Barnette, O-M

• Decision Date: 21 June 1977
• Docket Number: O-M,No. 8471,8471
• Citation: 553 S.W.2d 648
• Parties: Delilah MORRIS, Appellant v. C. C. BARNETTE, d/b/a We Never Close Coin-at, et al., Appellees.
• Court: Texas Court of Appeals

Page 648

553 S.W.2d 648

Delilah MORRIS, Appellant v. C. C. BARNETTE, d/b/a We Never Close Coin-O-Mat, et al., Appellees.

No. 8471.

Court of Civil Appeals of Texas, Texarkana.

June 21, 1977.

Rehearing Denied July 12, 1977.

Harry B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellant.

Charles D. Barnette, Arnold, Arnold, Lavender & Rochelle, Texarkana, Ark., for appellees.

CHADICK, Chief Justice.

A summary judgment dismissing with prejudice the action of plaintiff below was entered in the trial court. The judgment is reversed and the case remanded to the trial court.

In summary, this is a suit by a business invitee against the possessor of business premises, open to the public, to recover both actual and exemplary damages for personal injuries inflicted by the acts of a third person. Mrs. Delilah Morris pled that she was a customer and invitee at a washateria operated by C. C. Barnette, d/b/a We Never Close Coin-O-Mat Washateria and We Never Close Coin-O-Mat Washateria, when she was physically and sexually assaulted and injured; that the negligence of Barnette and We Never Close Coin-O-Mat Washateria was a proximate cause of her injury; the negligence alleged was "(F)ailure to take such necessary precautions, such as having a watchman, an alarm, or some type of protection as would have protected Plaintiff, an invitee, from the occurrence herein complained of." The indicated defendants answered with numerous special exceptions and a general denial. Hereafter, reference to Barnette includes reference to We Never Close Coin-O-Mat Washateria unless the context clearly indicates otherwise.

With reference to the duty of a possessor of business premises to control the conduct of a third party on the premises, Prosser, The Law of Torts, p. 405 (3rd Ed. 1964), says that:

"In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence of . . . other persons who have entered it, or even from intentional attacks on the part of third persons. But he is required to take action only when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the invitee. Again, in the usual case, a warning will be sufficient precaution, unless it is apparent that, either because of lack of time or by reason of the character of the conduct to be expected on the part of the third person, it will not be effective to give protection."

American Law Institute's Restatement of the Law of Torts, Second, Sec. 344 (1965), states:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to the 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."

Comment f under the quoted section discusses the duty of the possessor of the land to police the premises and says:

"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...