Thomas v. Cnc Investments, L.L.P.

• Decision Date: 31 May 2007
• Docket Number: No. 01-05-00838-CV.,01-05-00838-CV.
• Parties: Craig THOMAS, Karen Ann Thomas, Kaitlin Jade Thomas, and Caroline Angelene Thomas, Appellants, v. CNC INVESTMENTS, L.L.P, Appellee.
• Court: Texas Court of Appeals

234 S.W.3d 111

Craig THOMAS, Karen Ann Thomas, Kaitlin Jade Thomas, and Caroline Angelene Thomas, Appellants, v. CNC INVESTMENTS, L.L.P, Appellee.

No. 01-05-00838-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 31, 2007.

Marshall Davis Brown Jr., Pavlas & Brown, P.C., Houston, TX, for Appellants.

Bernardo S. Garza, Callier & Garza, L.L.P., Houston, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and ALCALA.

OPINION

TIM TAFT, Justice.

Appellants, Craig Thomas, Karen Ann Thomas, Kaitlin Jade Thomas, and Caroline Angelene Thomas, appeal from a take-nothing summary judgment rendered upon the motion of appellee, CNC Investments, L.L.P. ("CNC"). We determine whether the trial court erred by granting CNC's motion for summary judgment on appellants' causes of action against CNC for vicarious liability for assault, premises liability, and negligent hiring. We affirm the judgment of the trial court.

Background

On July 29, 2002, Darrell Gordon, a Harris County Sheriff's deputy, was working an extra job at the Oaks of Woodforest apartment complex.¹ At about 12:15 a.m., Deputy Gordon requested assistance from Craig Thomas and Toby Kroger,² who were also Harris County Sheriff's deputies, to conduct a property inspection of the complex because Deputy Gordon was working alone that night. Deputies Thomas and Kroger were both off duty, working an extra job at another apartment complex in the area, and agreed to help Deputy Gordon patrol the Oaks of Woodforest apartment complex. While the deputies were patrolling the complex, a tenant gave them a tip about a stolen Dodge Durango in the apartment complex parking lot. During their patrol of the apartment complex, the deputies saw a Dodge Durango matching the informant's description of the stolen vehicle. Deputies Gordon and Kroger approached the driver of the Dodge Durango. The suspect started to drive away, and Deputies Gordon and Kroger shouted, "Sheriff's Department. Stop the vehicle. Stop the vehicle." The suspect revved the truck's engine and drove past Deputies Kroger and Gordon toward Deputy Thomas. Deputy Thomas turned his flashlight on himself "so that [the driver] could see that [Deputy Thomas] had a badge and `Sheriff' across [his] chest." When the suspect continued to accelerate toward Deputy Thomas, all of the deputies fired shots at the driver. Deputy Thomas fired shots first, then Deputies Kroger and Gordon fired several shots. The suspect ran over Deputy Thomas. At some point while Deputy Gordon was shooting at the suspect, he accidentally shot Deputy Thomas in the leg. While the suspect was driving away, Deputy Kroger fired four more rounds, shooting the suspect in the back of the neck.

Appellants sued CNC, the company that paid Deputy Gordon to patrol the Oaks of Woodforest apartment complex. In their petition, appellants alleged that (1) CNC was vicariously liable for Deputy Gordon's assault of Deputy Thomas, i.e., Deputy Gordon's reckless discharge of his firearm, which injured Deputy Thomas; (2) CNC had a duty to use ordinary care to protect Deputy Thomas against an unreasonable and foreseeable risk of harm from the criminal acts of third parties on its premises because CNC failed to have adequate security and to maintain the access gate at its apartment complex; and (3) CNC did not use ordinary care in determining whether Deputy Gordon was competent to be hired to patrol its premises.

In its answer, CNC entered a general denial and pleaded that (1) CNC was not vicariously liable because Deputy Gordon was acting as a public-safety officer when he accidentally shot Deputy Thomas, (2) CNC was not vicariously liable because Deputy Gordon was an independent contractor and not its employee, (3) Deputy Thomas was barred from recovering damages for injuries on its premises under the "firefighter's rule," (4) CNC was not liable for Deputy Thomas's injuries on its premises because his injuries were the cause of third parties beyond its control, and (5) Deputy Thomas's recovery should be reduced or barred under the doctrine of proportionate responsibility.

CNC moved for traditional summary judgment on appellants' assault cause of action on the grounds that (1) CNC was not vicariously liable because Deputy Gordon was acting as a public-safety officer when he shot Deputy Thomas and (2) CNC was not vicariously liable because Deputy Gordon's conduct was negligent, not intentional, and, therefore, CNC could not be held liable for its independent contractor's negligence.³

CNC moved for traditional summary judgment against appellants' premises-liability⁴ cause of action on the grounds that (1) Deputy Thomas was barred from recovering for his injuries on its premises under the "firefighter's rule"; (2) CNC's failure to have an additional off-duty Sheriff's deputy on the premises was not the proximate cause of Deputy Thomas's injuries; (3) CNC's failure to maintain the access gate on the premises was not the proximate cause of Deputy Thomas's injuries; and (4) Deputy Thomas was a licensee who had actual knowledge of the danger of criminal activity at the complex, and, therefore, CNC did not have a duty to Deputy Thomas.

CNC moved for traditional summary judgment against appellants' negligent-hiring cause of action on the ground that CNC did not breach any duty because it had used ordinary care in hiring Deputy Gordon to do security work because he was a Sheriff's deputy. CNC moved for no-evidence summary judgment against appellants' negligence-hiring cause of action on the ground that there was no evidence that Deputy Gordon was not qualified to do security work.

On August 5, 2005, the trial court granted CNC's motion for summary judgment. The trial court did not specify on what basis it rendered summary judgment. On August 22, 2005, the trial court signed a final judgment dismissing all of appellants' claims against CNC.

Standard of Review and Burdens of Proof

The propriety of summary judgment is a question of law, and we thus review the trial court's ruling de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are indulged in the non-movant's favor. Johnson County Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). When a summary-judgment order does not state the grounds upon which it was granted, the summary judgment may be affirmed on any of the movant's theories that has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996). Appellate courts should consider all grounds for summary judgment that the movant presented to the trial court when they are properly preserved for appeal. Id. at 625. Thus, the party appealing from such a judgment must show that each of the independent arguments alleged in the motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.-Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condo. Corp., 685 S.W.2d 755, 757 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.).

The movant for traditional 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. TEX.R. CIV. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for traditional summary judgment must either disprove at least one element of each of the plaintiff's causes of action or conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant's claims on which the non-movant would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. TEX.R. CIV. P. 166a(i). A no-evidence summary judgment will be sustained on appeal when (1) there is 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 by the non-movant to prove a vital fact, (3) the evidence offered by the non-movant to prove a vital fact is no more than a scintilla, or (4) the non-movant's evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.

Summary Judgment

In seven issues, appellants argue that the trial court erred by granting CNC's motion for summary judgment on their causes of action against CNC for vicarious liability for assault, premises liability, and negligent hiring.

A. Vicarious Liability for Assault

In issues one and two, appellants argue that the trial court erred by granting CNC's traditional motion for summary judgment on their assault cause of action against CNC. In issue one, appellants argue that the trial court erred by granting CNC's motion for traditional summary judgment on the ground that CNC was not vicariously liable because Deputy Gordon was acting as a public-safety officer when he shot Deputy Thomas. In issue two, appellants argue that the trial court erred by granting CNC's motion for traditional summary judgment on the ground that CNC was not vicariously liable because Deputy Gordon's conduct was negligent, not intentional, and, therefore, CNC could not be held liable for its...