Peerenboom v. HSP Foods, Inc.
| Decision Date | 01 November 1995 |
| Docket Number | No. 10-95-089-CV,10-95-089-CV |
| Citation | 910 S.W.2d 156 |
| Parties | Clifford and Vickie PEERENBOOM, Individually and as Next Friends of JoAnn Peerenboom, a minor, Appellants, v. HSP FOODS, INC., d/b/a Jack in the Box, Appellee. |
| Court | Texas Court of Appeals |
Shane M. Sanders, Adams, Brantley, Holt & Sanders, P.L.L.C., College Station, Lane D. Thibodeaux, James & Thibodeaux, P.L.L.C., Bryan, for appellants.
Che D. Williamson, Munisteri, Sprott, Lefevre & Rigby, Houston, for appellee.
Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.
This is a premises liability case. Clifford and Vickie Peerenboom sued Jack in the Box as next friends of JoAnn Peerenboom, their daughter. They alleged that an off-duty employee of the company, David Wester, assaulted JoAnn, also an off-duty employee, on its premises on October 16, 1992. At the time of the incident Wester was twenty-seven and JoAnn was sixteen. According to the Peerenbooms, after JoAnn completed her shift at about 11:00 p.m., Wester "lured" her to a dumpster enclosure behind the restaurant where he sexually assaulted her.
The Peerenbooms asserted claims against Jack in the Box of negligence, negligence per se, and gross negligence. Jack in the Box filed a motion for summary judgment on grounds that JoAnn was a trespasser at the time and place of the alleged assault, or alternatively, that it was not the cause in fact of the assault, which was not foreseeable. Summary judgment was entered for Jack in the Box.
The Peerenbooms complain in four points that the court erred in granting summary judgment because genuine issues of material fact exist as to whether JoAnn was an invitee, licensee, or trespasser at the time and place of the incident; whether Jack in the Box breached its corresponding duty to her; and whether Jack in the Box proximately caused the alleged assault. We conclude that: 1) the summary-judgment proof establishes as a matter of law that JoAnn was a trespasser at the time of the alleged incident; 2) genuine issues of fact exist as to whether Jack in the Box breached its duty to JoAnn as a trespasser; and 3) genuine issues of fact exist as to whether Jack in the Box's conduct was the proximate cause of the Peerenbooms' injuries. Thus, we reform the summary judgment to a partial summary judgment as to JoAnn's status as a trespasser, and reverse and remand for a trial on the merits.
In reviewing the summary judgment, we must determine whether Jack in the Box met its burden by establishing that no genuine issue of material fact exists. See Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). As defendant, Jack in the Box bears the burden of proving its entitlement to the summary judgment as a matter of law by conclusively negating one of the essential elements of each of the Peerenbooms' claims. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (1991); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). We must accept all evidence favorable to the Peerenbooms as true, indulging every reasonable inference and resolving all doubts in their favor. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). We will consider evidence which favors Jack in the Box only if it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).
The parties disagree as to what we should consider as summary-judgment evidence. Jack in the Box argues that the affidavits of Jackie Campbell and Michael E. Mackey, which comprise a large portion of the Peerenbooms' summary-judgment evidence, were not properly before the trial court and should not be considered. Jack in the Box objected to the form of these affidavits at the summary-judgment hearing on December 7, 1994. 1 The Peerenbooms asked for an opportunity to cure the defects, 2 and the hearing was reset for December 27. However, the Peerenbooms waited until that day to file the amended affidavits, and leave to file was not granted.
According to Rule 166a(c), "[e]xcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." TEX.R.CIV.P. 166a(c). Jack in the Box argues that the Peerenbooms failed to comply with Rule 166a and, thus, the amended affidavits are presumed to be disallowed and are not entitled to evidentiary consideration. See INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex.1985); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.1970); Kotzur v. Kelly, 791 S.W.2d 254, 255-56 (Tex.App.--Corpus Christi 1990, no writ). The Peerenbooms argue in response that, since Jack in the Box failed to obtain a ruling on its objections or obtain a written order signed by the trial judge and entered of record, the objections are waived and the original affidavits remain a part of the summary-judgment record. See Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.--Dallas 1994, no writ); Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex.App.--Waco 1992, no writ).
The resolution of this argument depends on the type of defect at issue. A defect in substance, such as the absence of proper authentication, cannot be waived by failing to object or obtain a written order. Kotzur, 791 S.W.2d at 256. "This objection may be raised for the first time on appeal because an unsworn statement is not an affidavit and, therefore, not competent summary judgment proof." Id. Thus, if the Peerenbooms' original affidavits are substantively defective, Jack in the Box is correct in arguing that the affidavits are not entitled to evidentiary consideration, despite its failure to obtain a written order on its objections.
On the other hand, "[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." TEX.R.CIV.P. 166a(f) (emphasis added). Further, even if properly objected to, affidavits will remain part of the summary-judgment evidence unless an order sustaining the objection is "reduced to writing, signed, and entered of record." Eads, 843 S.W.2d at 211. Thus, if the original affidavits are defective in form, the Peerenbooms are correct in arguing that Jack in the Box waived its objections because it failed to obtain a written order. Consequently, those affidavits would remain part of the summary-judgment record.
In this case, Jack in the Box objected to the original Campbell and Mackey affidavits primarily because they did not establish the competency of the affiants under Rule 166a(f). TEX.R.CIV.P. 166a(f). Even the title of Rule 166a(f), "Form of Affidavits; Further Testimony," suggests that competency defects are matters of form that are easily cured. Id. (emphasis added); see Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex.1978); Wyatt v. McGregor, 855 S.W.2d 5, 17-18 (Tex.App.--Corpus Christi 1993, writ denied); Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.--Dallas 1977, no writ). We conclude that Jack in the Box waived its objections to the original Campbell and Mackey affidavits by failing to secure an order that was "reduced to writing, signed, and entered of record." Eads, 843 S.W.2d at 211. Thus, we will consider both original affidavits as part of the summary-judgment record.
To prevail on its motion for summary judgment, Jack in the Box must conclusively negate one of the essential elements of each of the Peerenbooms' claims for negligence. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). The common-law duty of negligence consists of three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The duty owed by a premise owner or occupier is determined by the status of the complaining party at the time and place of injury. Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 751 (Tex.App.--Corpus Christi 1993, writ denied).
We first examine whether there is a genuine issue of material fact as to JoAnn's status at the time and place of the incident. Jack in the Box argued in its motion for summary judgment that JoAnn was a trespasser at the time of the alleged assault, and that it had only a duty not to willfully injure her. See Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). In response, the Peerenbooms argued that JoAnn was an invitee at the time of the alleged assault and that Jack in the Box owed her a duty of reasonable care to protect her from foreseeable injuries. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975).
A person can enter property as an invitee or licensee as to one part of the property and become a trespasser as to another part of the property. Burton Constr. & Shipbuilding Co., 273 S.W.2d at 602; Hopkins v. Texas Power and Light Co., 514 S.W.2d 143, 148 (Tex.Civ.App.--Dallas 1974, no writ); Crum v. Stasney, 404 S.W.2d 72, 75 (Tex.Civ.App.--Eastland 1966, no writ); Fitzgerald v. Andrade, 402 S.W.2d 563, 566 (Tex.Civ.App.--Austin 1966, writ ref'd n.r.e.). The status of an invitee or licensee, who has permission to be on part of the premises, decreases to that of a trespasser when he makes an unforeseen departure to another part of the premises uninvited. Williams v. Bill's Custom Fit, Inc., 821 S.W.2d 432, 435 (Tex.App.--Waco 1991, no writ). For example, a plaintiff who has a license to cross railroad tracks at a private railroad switching yard becomes a trespasser when sleeping in the rail yard, because the license to cross the tracks does not include the license to sleep in the yard. Texas &...
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