Silva v. Spohn Health System Corp.
| Decision Date | 12 June 1997 |
| Docket Number | No. 13-96-082-CV,13-96-082-CV |
| Citation | 951 S.W.2d 91 |
| Parties | Herlinda SILVA, Appellant, v. SPOHN HEALTH SYSTEM CORPORATION d/b/a Spohn Hospital, Appellee. |
| Court | Texas Court of Appeals |
Jerry J. Trevino, Thomas M. Schumacher, Corpus Christi, for Appellant.
Ben A. Donnell, Clay E. Coalson, Carlos A. Mattioli, Richard A. McNitzky, Meredith, Donnell & Abernethy, Corpus Christi, for Appellee.
Before SEERDEN C.J., and YANEZ and CHAVEZ, JJ.
Herlinda Silva appeals the trial court's granting of a motion for summary judgment in favor of appellee, the operator of Spohn Hospital in Corpus Christi, Texas, in her premises liability suit. We will reverse the trial court's grant of summary judgment.
On July 5, 1994, appellant filed her original petition against appellee, alleging premises liability theories based on a stabbing which occurred on September 9, 1993. The undisputed facts are as follows: appellant was employed with the evening cleaning crew at Spohn Hospital; appellee required its evening employees to exit through a single unlocked exit; when appellant exited Spohn Hospital on the evening of September 9, 1993, no security personnel were patrolling the vicinity of the exit; appellant was stabbed as she left Spohn Hospital and was entering the automobile in which she was to be given a ride home. In her deposition, taken March 21, 1995, appellant testified that, at the moment she was stabbed, she was standing on the curb which adjoined the street and appellee's property.
On October 3, 1995, appellee filed its motion for summary judgment, alleging its entitlement to judgment as a matter of law, based on appellant's assertion that she was standing on the curb. Appellee's motion for summary judgment focused upon the "duty" element of the appellant's tort cause of action, urging that it did not own, occupy, or otherwise control the property where the assault occurred. Appellee's summary judgment proof consisted of appellant's deposition testimony.
Appellant's response to the motion for summary judgment included the following evidence:
Affidavit of Norman Bottom 1, an unchallenged expert in the field of premises security, who opined that (1) Spohn Hospital was located in a "high crime" area, (2) the risk of attacks on health care employees--the majority of whom are female--is foreseeable, (3) appellee's policy of maintaining only one nighttime exit created a predictable pattern of pedestrian traffic, (4) appellee's security practices were substandard, and (5) appellee's security failures caused appellant's stabbing incident;
Excerpts from the deposition testimony of appellee's employees charged with security oversight, basically establishing that appellee recognized the need for security measures at its complex;
Excerpts from the deposition testimony of Ross Purdy, a sociology professor with Texas A & M University in Corpus Christi, who opined that Spohn Hospital was located in a high crime area; and
Deposition testimony of appellant.
Summary judgment was granted on October 27, 1995. This appeal ensued. On appeal, Silva brings three points of error. The first point contends that "the trial court erred in granting summary judgment ... since genuine issues of material fact existed and appellee failed to prove as a matter of law that it did not owe a duty to appellant." The second point complains that "appellee failed to prove as a matter of law that it was not negligent." Appellant complains by her third point that "appellee failed to prove that it was entitled to judgment as a matter of law."
Standard of review
Summary judgments are reviewed in accordance with the following standards: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23-24 (Tex.1990); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We note that, to establish entitlement to a summary judgment, a moving defendant has the burden of conclusively proving its defense as a matter of law. Odeneal v. Van Horn, 678 S.W.2d 941, 941 (Tex.1984).
Controlling law
The essential elements of an action based on negligence, as in the instant case are: (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; and, (3) damages proximately resulting from that breach. See, generally, El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Duty is the threshold inquiry; a plaintiff must prove the existence and violation of a duty owed him by the defendant to establish liability in tort. Id.
Landowners and occupiers owe varying duties of care to visitors on their land, depending on the legal status of the visitor. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996)(citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975); Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.)). We also note that a nonowner of property may potentially owe tort duties, coextensive with those of an owner, if the nonowner exercises control of property. See, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex.1993) (); Hernandez v. Heldenfels, 374 S.W.2d 196, 198 (Tex.1963). Right of control is thus one of the factors that determines whether a legal duty should be imposed. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).
An "invitee" is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Texas Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex.Civ.App.--Tyler 1964), writ ref'd n.r.e., 393 S.W.2d 821 (Tex.1965). Appellant fits within the foregoing definition, and we consider her an invitee as to Spohn Hospital.
As a general rule, a defendant has no duty to prevent the criminal acts of a third party who does not act under the defendant's supervision or control. El Chico Corp., 732 S.W.2d at 313; Nixon, 690 S.W.2d at 550. An exception to this rule exists when criminal conduct is the foreseeable result of a tortfeasor's negligence. Lefmark Mgmt. Co. v. Winona Old, 946 S.W.2d 52, 53 (Tex., 1997). In such a case, the defendant has a duty to prevent injuries to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. El Chico Corp., 732 S.W.2d at 314; Nixon, 690 S.W.2d at 550.
Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). An owner or occupier is charged with the
duty to protect invitees on the premises from criminal acts of third parties if the landowner knows or has reason to know of an unreasonable risk of harm to the invitee. [Nixon, 690 S.W.2d at 550.] This duty developed out of the premise that the party with the 'power of control or expulsion' is in the best position to protect against the harm, and when that party 'by reason of location, mode of doing business, or observation or past experience, should reasonably anticipate criminal conduct on the part of third persons, ... (that party) has a duty to take precautions against it.' Morris v. Barnette, 553 S.W.2d 648, 649-50 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e.).
Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993).
Thus, if criminal acts of third parties are reasonably foreseeable, the owner or occupier is required to undertake definite precautions on behalf of its invitees. See, e.g., Kendrick v. Allright Parking, 846 S.W.2d 453, 458 (Tex.App.--San Antonio 1992, writ denied) (); Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.) ("Liability for injuries may arise from the failure of the proprietor to exercise reasonable care to discover that such acts by third persons are occurring, or are likely to occur, coupled with the failure to provide reasonable means to protect his patrons from the harm or to give a warning adequate to enable the patrons to avoid the harm.").
Although the issue of foreseeability,
as an element of duty[,] may frequently be determined as a matter of law, in some instances it involves the resolution of disputed facts or inferences which are inappropriate for legal resolution. Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. [1990] ), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990). In such cases, it is properly submitted to the trier of fact. Id.; Bennett v. Span Industries, Inc., 628 S.W.2d 470, 474 (Tex.App.--Texarkana 1981, writ ref'd n.r.e.). See also Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex.1991).
Because appellee contends that the sidewalk upon which appellant was stabbed is, actually, part of the city street (which appellee contends must absolve it of any potential liability), we note that
[n]umerous cases in Texas have held that the owner or occupant of...
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