Smith v. Brittain
| Decision Date | 21 October 2020 |
| Docket Number | NO. 12-19-00397-CV,12-19-00397-CV |
| Parties | BECKY SMITH, APPELLANT v. GERALD BRITTAIN, APPELLEE |
| Court | Texas Court of Appeals |
Becky Smith appeals a summary judgment order entered in favor of Gerald Brittain. In a single issue, Smith urges the trial court erred in granting summary judgment. We reverse and remand.
Brittain was diagnosed with Parkinson's and needed home health care due to his physical limitations. Smith, Brittain's stepdaughter, stayed at Brittain's house and handled his care and maintenance. This consisted of mopping, sweeping, cleaning dishes, preparing meals, maintaining the yard, transporting Brittain to and from medical appointments, managing his finances and payment of his medical bills, and filing his taxes. Smith had been handling Brittain's care and maintenance for years when, in May 2015, he executed a durable power of attorney in Smith's favor. Smith stayed at Brittain's house for approximately two weeks at a time when she was not traveling with her husband for his work. While at Brittain's home, Smith stayed in a room that had been converted from a carport. The converted carport contained Smith's bedroom and a laundry room. The carport was only accessible via a homemade ramp. The ramp allowed Brittain to access the laundry room via the handrails when Smith was not in the home. The ramp is described as a piece of plywood affixed to two stairs with a handrail and covered with indoor/outdoor carpet. Smith and her granddaughter had slipped on the ramp in the past, and Smith described the ramp as steep and slippery. However, Brittain refused to allow Smith to remove the ramp.
On July 31, 2015, Smith checked on Brittain, who was watching television, around 11:30 p.m. When she attempted to return to her room, she slipped on the ramp and was injured. She suffered facial fractures and a fractured wrist, all of which required surgery.
Ultimately, Smith sued Brittain alleging that the ramp constituted a premises defect. She urged that she was either a licensee or invitee and the ramp was an unreasonably dangerous condition. Brittain filed a traditional motion for summary judgment alleging that Smith was a licensee as a matter of law and that her knowledge of the allegedly dangerous condition precluded his liability. Smith responded that she was an invitee and her knowledge did not preclude liability under the necessary use exception. Following two hearings and supplemental briefing, the trial court granted the motion for summary judgment without specifying the grounds. This appeal followed.
In her sole issue, Smith urges the trial court erred in granting summary judgment. Specifically, she contends that fact issues remain regarding her status as an invitee or licensee. She further argues that fact issues exist regarding the power of attorney's effect.
The standard for reviewing a traditional summary judgment is well-established. The movant for traditional summary judgment bears the burden of showing the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Mkts.
, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant establishes a right to summary judgment, the burden shifts to the nonmovant to respond to the motion and present the trial court with any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Generally, a trial court may not consider summary judgment evidence not referenced in or incorporated into the motion. Fed.Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
We review the record de novo and in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan
, 199 S.W.3d 291, 292 (Tex. 2006). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court's order does not specify the grounds on which it granted summary judgment, we affirm the trial court's ruling if any theory advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
In Texas, a person injured on another's property may sue the property owner or occupier under a premises-liability theory for injuries sustained as the result of an unreasonably dangerous condition on the premises. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Premises liability is a special form of negligence where the degree of care the property owner owes to the injured party depends on the status of the injured party, in relationship to the property, at the time the incident occurred. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (citing M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004)); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). With respect to premises liability claims, an injured person is classified as either a trespasser, licensee, or invitee. Wilson v. Northwest Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 850 (Tex. App.—Amarillo 2019, no pet.).
"A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasures, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge." Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936). More recently, in a premises liability case, the Texas Supreme Court stated that "[a] trespasser at common law was one who entered upon property of another without any legal right or invitation, express or implied." State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006) (citing Webster, 91 S.W.2d at 306). The only duty a property owner or occupier owes a trespasser is the duty not to injure that person willfully, wantonly, maliciously, or as a result of gross negligence. SeeBoerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (citing Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997)); see also RESTATEMENT (SECOND) OF TORTS § 333 (1965).
A licensee is a person who enters on the property of another with the owner's or occupier's consent and for the licensee's own convenience. Wilson, 576 S.W.3d at 850 (). As to a licensee, a property owner or occupier owes a duty not to injure the licensee willfully, wantonly, or through gross negligence, and, in cases in which the owner has actual knowledge of a dangerous condition unknown to the licensee, a property owner owes a licensee the duty to warn or make safe the dangerous condition. Id. (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016)). Therefore, in order to establish liability, a licensee must prove: (1) a condition of the premises created an unreasonable risk of harm to the licensee, (2) the owner or occupier had actual knowledge of the condition, (3) the licensee did not have knowledge of the condition, (4) the owner or occupier failed to exercise ordinary care to protect the licensee from danger, and (5) the owner's or occupier's failure was a proximate cause of injury to the licensee. Wilson, 576 S.W.2d at 851.
An invitee is usually defined as someone who enters onto property with the owner's knowledge and for the mutual benefit of both parties. Rosas, 518 S.W.2d at 536. An invitee has also been defined somewhat more broadly as someone who enters another's property on the business of or to the benefit of the landowner. See Cowart v. Meeks
, 111 S.W.2d 1105, 1107 (Tex. 1938) () (emphasis added; citation omitted); Tex. 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) () (emphasis added).
As to an invitee, a property owner or occupier owes the same duties owed to a trespasser or licensee; and, in addition, the property owner owes a duty to keep its premises reasonably safe. While "the duty owed by an owner or occupier of premises to an invitee is not that of an insurer," the owner or occupier does owe a duty to exercise reasonable care to protect againstdanger from a condition on the premises that creates an unreasonable risk of harm of which the owner or occupier has actual or constructive knowledge. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The essential elements of a premises liability cause of action as to an invitee include the following: (1) the claimant was an invitee, (2) the defendant was an owner or occupier of the premises, (3) a condition on the premises posed an unreasonable risk of harm, (4) the property owner or occupier knew or reasonably should have known about the condition, (5) the defendant breached its duty of ordinary care...
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