Pinkerton's v. Manriquez

• Decision Date: 26 November 1997
• Docket Number: No. 14-96-00560-CV,14-96-00560-CV
• Citation: 964 S.W.2d 39
• Parties: PINKERTON'S d/b/a Pinkerton Security Investigation Services, Appellant, v. David MANRIQUEZ, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 39

964 S.W.2d 39

PINKERTON'S d/b/a Pinkerton Security Investigation Services, Appellant, v. David MANRIQUEZ, Appellee.

No. 14-96-00560-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 26, 1997.

Rehearing Overruled Jan. 29, 1998.

Evelyn T. Ailts, Dean G. Pappas, Houston, for appellant.

Kevin Dubose, John Michael Devlin, R. Christopher Goldsmith, John L. Barnes, Houston, for appellee.

Before YATES, HUDSON and FOWLER, JJ.

MAJORITY OPINION

YATES, Justice.

Appellant, Pinkerton's d/b/a Pinkerton Security Investigation Services ("Pinkerton"), appeals a judgment on a jury verdict in favor of appellee, David Manriquez ("Manriquez"), for personal injuries sustained when he attempted to assist the owner of a stalled vehicle by pushing the vehicle up an incline of a parking garage. We reverse the judgment of the trial court and render a judgment that Manriquez take nothing on his claims against Pinkerton.

I. Background

In February 1991, Manriquez worked as a general maintenance person for Pedus Building Services ("Pedus"), which was hired to provide cleaning services for the Regency Parking Garage ("the garage"), located in downtown Houston. Pinkerton was hired to provide security for the garage. At 6:45 a.m., on February 19, 1991, a contract parker in the garage, Arttemus Jones ("Jones"), called Pinkerton's security officer, Timothy Chaney ("Chaney"), in the cashier's booth, and informed him that his car was stalled. Chaney, who could not leave the cashier's booth unattended, ordered Manriquez to assist Jones with the stalled car. ¹

Manriquez found Jones and his car on the up-ramp between the 12th and 13th floors.

Manriquez and Jones, without reporting back to Chaney, decided to push the car up the ramp to the floor above. Manriquez stood behind the car while Jones put the car in neutral. After Jones put the car in neutral, the car rolled backwards, pinning Manriquez against the wall. As a result of the accident, Manriquez lost part of his fourth and fifth fingers on his left hand. Manriquez's back and left knee were also injured.

Claiming negligence, Manriquez and his wife, Flor Manriquez ("Flor"), sued Jones, Chaney, Pinkerton, and Block 299 Venture, comprised of Tenneco Realty, Inc. d/b/a Regency Parking Garage ("Tenneco") and Prudential Insurance Company of America ("Prudential"), the owners of the garage. ² Flor nonsuited all the defendants and Manriquez nonsuited Jones. Based on the statute of limitations, all claims against Chaney were dismissed on summary judgment. Tenneco and Prudential were nonsuited after they had reached a settlement agreement with Manriquez. Pinkerton was the only remaining defendant at trial.

At trial, finding Pinkerton 35% negligent, Manriquez 35% negligent, and Tenneco and Prudential 30% negligent, the jury returned a verdict in favor of Manriquez for $303,500.00 in damages even though Manriquez had only pled $150,000.00 in damages. Manriquez moved for leave to file a post-trial amended petition, in which he sought to plead for total damages of $303,500.00, in order to conform to the amount of damages the jury had awarded him. The trial court, however, denied Manriquez leave and calculated the damages according to the amount which Manriquez had originally pled.

Manriquez appeals the trial court's calculation of damages. In his sole point of error, Manriquez claims the trial court erred in calculating the damages in accordance with the amount Manriquez had pled rather than the amount which the jury had awarded him.

Pinkerton filed a cross-appeal, raising eight points of error. In its first two points of error, Pinkerton claims that as a matter of law they owed no duty to Manriquez, or, alternatively, that there was no evidence upon which to impose a duty to Manriquez. In its third and fourth points of error, Pinkerton attacks both the legal and factual sufficiency of the evidence to support a finding that Pinkerton proximately caused Manriquez's damages. In its fifth point of error, Pinkerton asserts it cannot be held vicariously liable for the acts of an employee who did not owe a duty to Manriquez. In its remaining points of error, Pinkerton claims the evidence is insufficient to support an award of damages for mental anguish and for future physical pain. Because the issues of duty and proximate cause are dispositive, we shall address these points of error before addressing Pinkerton's remaining points of error and Manriquez's point of error.

II. Standard of Review--Legal Sufficiency

When reviewing a challenge to the legal sufficiency of evidence, i.e., a "no evidence"

point of error, the reviewing court may consider only the evidence and inferences that support the challenged findings and should disregard all evidence and inferences to the contrary. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law, and any challenges merely go to the weight of the evidence. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). The court may sustain a "no evidence" point of error if the record reveals one of the following:

(1) a complete absence of evidence of a vital fact;

(2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact;

(3) the evidence offered to prove a vital fact is no more than a scintilla; and

(4) the evidence established conclusively the opposite of the vital fact.

Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). There is some evidence when the proof supplies a reasonable basis upon which reasonable minds could reach different conclusions about the existence of a vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). When the reviewing court sustains a "no evidence" point, it is the court's duty to render judgment for the appellant because that is the judgment the trial court should have rendered. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (1986); National Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969).

III. Legal Duty

In order to prevail on a cause of action for negligence, the plaintiff must satisfy three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately caused by the breach. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476 (Tex.1995). The threshold issue in a negligence case is whether the defendant owed a duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The plaintiff must establish both the existence of a duty and the violation of that duty by the defendant. Greater Houston Transp. Co., 801 S.W.2d at 525; El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). Whether the defendant owed a duty to the plaintiff is a question of law for the court to decide from the particular facts of the case. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex.1996). ³ In ascertaining whether the defendant owed a duty to the plaintiff, the court considers: "the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden guarding against the injury, and the consequences of placing the burden on the defendant." Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex.1994); Greater Houston Transp. Co., 801 S.W.2d at 525. Additional factors for consideration include whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. Golden Spread Council, Inc., 926 S.W.2d at 290.

Of the above listed factors, foreseeability is the most significant consideration. Greater Houston Transp. Co., 801 S.W.2d at 525. It is not necessary for the defendant to have anticipated the particular occurrence in order for a duty to arise. Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 175 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Rather, a risk of harm is held to be foreseeable if the risk reasonably appears or should appear that others in the exercise of their lawful rights may be injured. Id.

A. Premises Liability

Manriquez asserts that as an invitee, Pinkerton owed him a duty to exercise reasonable care, including the duty to protect and safeguard him from unreasonably dangerous conditions on the premises or to warn of their existence.

Under Texas law, an invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.--El Paso 1997, writ requested) (citing Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex.App.--Waco 1995, no writ)). The duty owed to an employee of a contractor working on the premises of an owner or occupier at the time of injury is that owed to a business invitee. Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex.1973); Staublein v. Dow Chemical Co., 885 S.W.2d 502, 505 (Tex.App.--El Paso 1994, no writ). An owner or occupier of land has a duty to use reasonable care to protect an invitee from reasonably foreseeable injuries. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975); Yeager v. Drillers, Inc., 930 S.W.2d 112, 115 (Tex.App.--Houston [1st Dist.] 1996, no writ) (citing Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985)). Generally, a person who does not own or possess the premises does not assume any liability under a premise liability theory, unless he assumes control over, and responsibility for, the premises. City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex.1986); Rendleman v. Clarke, 909 S.W.2d...