Taylor v. Louis

• Decision Date: 25 August 2011
• Docket Number: No. 14–10–00654–CV.,14–10–00654–CV.
• Citation: 349 S.W.3d 729
• Parties: Michael TAYLOR, individually and as Next Friend of Chloe Bleu Taylor, Austan William Taylor, and Tristan Michael Taylor, Minor Children, Appellants,v.Kelley LOUIS, Appellee.
• Court: Texas Court of Appeals

349 S.W.3d 729

Michael TAYLOR, individually and as Next Friend of Chloe Bleu Taylor, Austan William Taylor, and Tristan Michael Taylor, Minor Children, Appellants,

v.Kelley LOUIS, Appellee.

No. 14–10–00654–CV.

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

Aug. 25, 2011.

Joshua Allen Estes, Richmond, for appellants.Maggie Rico–Zamora, Nicole S. Bakare, Ronald J. Restrepo, Houston, for appellee.Panel consists of Justices ANDERSON, BROWN, and CHRISTOPHER.

OPINION

TRACY CHRISTOPHER, Justice.

In this personal-injury case, appellant Michael Taylor, acting for himself and as next friend of his minor children, sued his former girlfriend, premises owner Kelley Louis, for injuries he received when he was assaulted in Kelley's home by her ex-husband, Hal Louis. Taylor appeals the no-evidence summary judgment granted in Kelley's favor, arguing that he produced sufficient evidence to raise genuine issues of material fact as to his premises-liability and negligent-activity theories of liability. We affirm.

I. Background

On December 26, 2006 appellant Michael Taylor and his three minor children were guests at the home of Taylor's girlfriend, Kelley Louis. Kelley's three children were also at the home. According to Taylor, Kelley's former husband, Hal Louis, called Kelley and asked to speak to their son at about 8:00 a.m. Kelley and Taylor were cooking breakfast at that time, and Kelley told Hal she would have the child call him back. Hal became upset and hung up the telephone, and he subsequently called back and began cursing at Kelley. This time, Kelley hung up the telephone. When Hal called a third time, Kelley did not answer the telephone, but Hal left a message that he was coming over to Kelley's house.

At about 8:30 a.m., Kelley and Taylor heard someone repeatedly ringing Kelley's doorbell or knocking on her door. The children yelled, “It's Hal.” Taylor remained in the kitchen while Kelley answered the door. When Kelley opened the door, Hal forced his way into the entryway of the house and refused Kelley's repeated demands that he leave. Hearing this, Taylor walked into the entryway with his cell phone and said to Hal, “I've heard Kelley ask you to leave at least four times. You probably should leave.” Hal asked if Taylor was going to make him leave, and Taylor answered, “No, but the police will.” As soon as Taylor dialed 911—and in front of all six minor children in the house, as well as a seventh child that Hal brought with him—Hal attacked Taylor, choking him and attempting to gouge his eyes out. Hal broke off the assault and left before the police arrived. Taylor was taken by ambulance to the hospital. He sustained a torn ligament in his right knee, and he required plastic surgery to repair the lacerations to his eyelids.

Fourteen months later, Taylor sued Kelley. He asserted premises-liability and negligent-activity theories of liability, and sought general, special, and exemplary damages for himself. On behalf of his children, he sought damages for loss of parental consortium and for the mental anguish they sustained from witnessing the assault.

Kelley moved for summary judgment on the grounds there was no evidence that she owed the Taylors any duty, that she breached any duty, or that any act or omission by her proximately caused the Taylors' injuries or damages. The trial court granted Kelley's motion without stating the grounds for the ruling, and allowed Taylor's motion for new trial to be overruled by operation of law.

II. Issues Presented

In seven overlapping issues, Taylor argues that the trial court erred in granting Kelley's summary-judgment motion. In his first issue, he argues that Kelley had a duty to warn or protect her social guests from the criminal acts of a third party. In his second issue, he contends that the assault was foreseeable because “Kelley knew of Hal Louis's past dangerous propensities, steroid use, and anger issues, yet continued to provoke and/or anger him and then opened a locked door allowing Hal's entrance into the home.” Again citing Kelley's alleged provocation of Hal, Taylor asserts in his third issue that he was a foreseeable victim. In his fourth issue, he contends he produced more than a scintilla of evidence that Kelley's conduct was grossly negligent. He asserts in his fifth issue that Kelley failed to disprove that Hal's assault was a superseding cause of Taylor's injuries. In his sixth issue, Taylor contends that it was improper for the trial court to grant summary judgment on the claims asserted under a negligent-activity theory because Kelley did not argue in her motion that there was no evidence of negligent activity. Finally, Taylor argues in his seventh issue that he produced evidence he was injured as a contemporaneous result of Kelley's negligence.

III. Standard of Review

We review summary judgments de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex.2009) (per curiam) (citing Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.2007)). We consider the summary-judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must affirm the summary judgment if any of the movant's theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

In a no-evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex.R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). We review the evidence presented by the motion and response in the light most favorable to the nonmovant, crediting evidence favorable to that party if a reasonable juror could, and disregarding contrary evidence unless a reasonable juror could not. Id. (citing City of Keller, 168 S.W.3d at 827 and Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002)). We sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. The evidence is insufficient if “it is ‘so weak as to do no more than create a mere surmise or suspicion’ ” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.2009) (quoting Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 793 (Tex.2006)).

IV. Analysis

Negligent activity and premises defect are similar but distinct theories of recovery. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997); Mayer v. Willowbrook Plaza L.P., 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Negligent-activity claims commonly are based on affirmative contemporaneous conduct by the owner while a premises-defect case is based on a failure to act—the owner's failure to take measures to make the property safe. See Del Lago Partners, Inc., v. Smith, 307 S.W.3d 762, 776 (Tex.2010).

Negligence consists of a duty, a breach of duty, and damages proximately caused by the breach. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). The existence of duty is a question of law for the court to decide from the facts surrounding the incident. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex.1990). Courts determine whether a duty exists by examining factors such as “the risk, foreseeability, the likelihood of injury, the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury,” ¹ the relationship between the parties,² whether one party had superior knowledge of the risk,³ whether that party had the right and ability to control the actor whose conduct precipitated the harm,⁴ and “any other relevant competing individual and societal interests implicated by the facts of the case.” ⁵ The decision of whether to impose a common-law duty on a social host can be particularly complex due to the “competing societal concerns and public policy issues inherent in such a decision.” Smith v. Merritt, 940 S.W.2d 602, 604–05 (Tex.1997).

Premises liability is a special form of negligence in which the premises owner's duty generally is determined by the plaintiff's status as an invitee, licensee, or trespasser. See Urena, 162 S.W.3d at 550. Here, it is undisputed that Taylor and his children were licensees on Kelley's property.

A landowner has a duty not to injure a licensee by willful, wanton, or grossly negligent conduct. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.2008) (per curiam). If the landowner has actual knowledge of a dangerous condition on the premises and the licensee is unaware of the condition, then the landowner has the additional duty to use ordinary care to either warn the licensee of the condition or make the condition reasonably safe. Id. The licensee has the burden to plead and prove that he did not actually know of the condition. See County of Cameron v. Brown, 80 S.W.3d 549, 558, 559 (Tex.2002). The landowner's actual knowledge usually is shown by evidence that the landowner received reports of prior injuries or reports of the danger presented by the condition. See Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.2008). It also can be established by circumstantial evidence that...