Ronk v. Parking Concepts of Texas, Inc.

• Decision Date: 04 June 1986
• Docket Number: No. 2-85-007-CV,2-85-007-CV
• Citation: 711 S.W.2d 409
• Parties: Nancy J. RONK, Appellant, v. PARKING CONCEPTS OF TEXAS, INC., Appellee.
• Court: Texas Court of Appeals

Page 409

711 S.W.2d 409

Nancy J. RONK, Appellant, v. PARKING CONCEPTS OF TEXAS, INC., Appellee.

No. 2-85-007-CV.

Court of Appeals of Texas Fort Worth.

June 4, 1986.

Rehearing Denied July 23, 1986.

Steves, Leonard & Jones and William C. Cooper and Sterling W. Steves and Joe A. Garza, Jr., Fort Worth, for appellant.

Greenberg, Benson, Fisk & Fielder, P.C. and Hollye C. Fisk, Dallas, for appellee.

Before FENDER, C.J., and JOE SPURLOCK, II and ASHWORTH (Retired), JJ.

OPINION

FENDER, Chief Justice.

Appellant, Nancy J. Ronk, appeals from the trial court's action in granting a summary judgment in favor of appellee, Parking Concepts of Texas, Inc. The issue involved was whether the owner/lessor of an open-air pay parking lot breached any duty owed to one of its monthly tenants, and was therefore liable for personal injuries she sustained as a result of a criminal assault by a third party.

We affirm.

Appellant's sole point of error is that the trial court erred in granting appellee's motion for summary judgment, because premises liability due to the criminal acts of third parties is a recognized cause of action in Texas, and because significant fact questions were raised by appellant as to whether appellee had notice that criminal activity was likely to occur.

Appellant filed suit against appellee for damages for multiple injuries sustained as a result of an incident which occurred on August 31, 1981, at approximately 1:30 p.m. in Fort Worth, Texas. Appellant alleged, and the summary judgment proof established, that appellant paid to park her car on a monthly basis in a parking lot owned by appellee. This lot was located at 221 West Lancaster, adjacent to the Texas and Pacific Building (T and P Building) where appellant was employed. ¹ While she was walking from her office to the parking lot on the day in question, appellant noticed that she was being followed by a man. This individual suddenly and without warning or provocation struck appellant, hit her repeatedly, cursed her and dragged her toward her car. The assailant forced appellant into her own car, whereupon a struggle ensued and appellant eventually lost consciousness. When the assailant attempted to start the car and drive away, the car stalled and hit a curb, at which point appellant regained consciousness and managed to escape. The parking facility where the attack occurred is owned by appellee which maintained a manned, air-conditioned parking booth in the parking area located on the opposite side of the office building, but no other security features and no manned booth on the site where the attack occurred. The manned booth was not equipped with a telephone.

In her pleadings, appellant alleged that appellee as operator of the parking lot owed a duty to appellant, as a business invitee, to provide sufficient precautions against reasonably anticipated criminal conduct by third parties, and to provide an effective warning or a reasonably sufficient number of servants to afford protection to appellant on the lot. Appellant alleged that appellee breached its duty to appellant which action constituted negligence.

Appellee filed a motion for summary judgment in which it stated that the applicable rule in the instant case is that there is no duty upon appellee to guard against the criminal acts of a third party, unless appellee knew or had reason to know that acts that posed an immediate probability of harm to appellant or other invitees were occurring or about to occur on the premises.

Appellant responded to appellee's summary judgment motions by claiming there were genuine issues of material fact yet unresolved, to-wit: there was sufficient evidence, based upon the past incidents of criminal activity and the extremely poor reputation of the area in question, for a jury to find that appellee did not exercise reasonable care to protect appellant.

The trial court granted appellee's motion for summary judgment and found that there were no genuine issues as to any material fact regarding appellee's right to a take nothing summary judgment.

In a summary judgment case, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, Creek 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166-A. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the non-movant. Id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the non-movant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference from the evidence must be indulged in favor of the non-movant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence which favors the movant's position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47. If such uncontroverted evidence is from an interested witness, it cannot be considered as doing more than raising a fact issue, unless it is clear, direct, positive and free from inconsistencies and contradictions. Id. The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of his cause of action or defense as a matter of law. City of Houston, 589 S.W.2d at 678.

In the instant case, we must determine if a genuine issue of material fact exists with regard to whether an entity, situated as our appellee, owed a duty to guard against the type of criminal conduct of a third party as was alleged by appellant. Appellee's position is that it had no duty to protect appellant from the criminal acts of third parties in the absence of knowledge that acts were occurring, or were about to occur, on the premises that posed an immediate probability of harm to appellant or other invitees.

The long-standing rule that a plaintiff must prove the existence and violation of a legal duty owed to him by a defendant in order to establish negligence liability remains intact. Three elements must be proven in order to establish liability for negligence: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). In order to determine whether appellee breached any duty owed to appellant, we must initially determine appellant's status on the property as a paying customer of the parking lot.

An invitee is one who enters onto another's land with the owner's knowledge and for the mutual benefit of both parties. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). The record before us clearly establishes that appellant occupied the status of an invitee on the parking lot premises operated by appellee. Therefore, the next issue we must consider is what duty appellee owed to appellant, as a business invitee.

The general rule with regard to physical dangers existing on the property is that the operator of a premises has a duty to an invitee to exercise ordinary care to keep the premises in a reasonably safe condition so that the invitee will not be injured. Genell, Inc. v. Flynn, 358 S.W.2d 543, 546 (Tex.1962). See also Atchison, Topeka and Santa Fe Railway Company v. Smith, 563 S.W.2d 660, 666 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). Where the duty to keep premises in a safe condition is imposed upon a person in control of them, this duty may include the duty to inspect the premises to discover dangerous conditions. Id. Generally, the owner or occupier of land can be charged with knowledge and appreciation of a dangerous condition on his premises only if a reasonably prudent person should have foreseen a probability that the condition would result in injury to another. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex.1970).

The Supreme Court of Texas recently had occasion to concern itself with the concept of foreseeability in Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). Although Nixon dealt with a duty imposed by ordinance upon an apartment house owner (the breach of which duty--requirement that owners shall keep all doors and windows of a vacant structure securely closed so as to prevent unauthorized entry--allowed a third party to commit rape inside a vacant apartment), the Court discussed the concept of "foreseeability" as follows:

Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 [(Tex.1977)]. Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, the tortfeasor's negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. Texas courts follow this rule. See Castillo v. Sears Roebuck & Co., 663 S.W.2d 60 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.); Walkoviak v. Hilton Hotel Corp., 580 S.W.2d 623 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.).

The RESTATEMENT (SECOND) OF TORTS sec. 448 (1965) states:

[Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence]

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to...