Wochner v. Johnson

• Decision Date: 27 April 1994
• Docket Number: No. 10-93-267-CV,10-93-267-CV
• Citation: 875 S.W.2d 470
• Parties: Gene WOCHNER, Individually and as Next Friend of Bryan Wochner, Appellant, v. Troy and Gerlene JOHNSON and Sam D. Satterwhite, Individually and d/b/a Satterwhite Log Homes, Appellees.
• Court: Texas Court of Appeals

Page 470

875 S.W.2d 470

Gene WOCHNER, Individually and as Next Friend of Bryan Wochner, Appellant, v.Troy and Gerlene JOHNSON and Sam D. SatterwhiteIndividually and d/b/a Satterwhite Log Homes, Appellees.

No. 10-93-267-CV.

Court of Appeals of Texas Waco.

April 27, 1994.

Rehearing Denied June 1, 1994.

Brenda J. Damuth, Robert W. Hartson, Inc., Dallas, for appellant.

Darrell G. Adkerson, Godwin & Carlton, P.C., Dallas, Joe B. Young, Patton, Nix & Young, Longview, for appellees.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Gene Wochner appeals the granting of a take-nothing summary judgment in favor of Troy and Gerlene Johnson and Sam D. Satterwhite, doing business as Satterwhite Log Homes.We will reverse the judgment.

On February 12, 1990, Imogene Wochner and her three-year-old son, Bryan, were visiting her twin sister, Gerlene, in the Johnsons' log home.The home was built by the Johnsons from plans and lumber purchased from Satterwhite Log Homes.After helping Gerlene move a couch from the second floor to the first floor of the log house, Imogene turned to get Bryan, who was on the second floor.Gerlene was walking toward the kitchen when she heard a noise.She turned around to find Imogene lying still between the foot of the stairs and the front door and Bryan sitting on the top step of the stairs.Imogene, who never regained consciousness, died on February 21, 1990.

Wochner filed suit on behalf of himself and his minor son to recover damages for the wrongful death of his wife, Imogene Wochner.Wochner alleged that Imogene was injured as a result of a fall proximately caused by a dangerous condition on the premises--the defectively designed and constructed stairs--of which the Johnsons had actual knowledge.Wochner also alleged that the Johnsons' negligent construction of the stairs was a proximate cause of Imogene's injuries.Wochner further alleged that Satterwhite was negligent in the following respects: (1) his design of the stairs; (2) his failure to provide purchasers of the plans with specifications for the safe construction of stairs; (3) his failure to warn purchasers that the stairs could be dangerous if not constructed properly; (4) his failure to instruct purchasers on the proper construction of the stairs; and (5) his failure to warn or instruct purchasers that they should seek assistance or consult model building codes to determine the proper method of constructing stairs.All of these acts or omissions were alleged to be proximate causes of Wochner's injuries.Finally, Wochner alleged that Satterwhite was strictly liable because the plans Satterwhite sold to the Johnsons were defective and unsafe at the time they were sold.According to Wochner's amended petition, because the plans were marketed and sold to individuals with no experience in the construction of stairs, the failure to warn that the stairs could be dangerous if not constructed properly and the failure to instruct the builder on the proper construction of the stairs or on how to determine the manner in which to properly construct the stairs were producing causes of Imogene's injuries.

The trial court granted a take-nothing summary judgment in favor of the Johnsons and Satterwhite.A defendant who moves for summary judgment on the plaintiff's cause of action rather than an affirmative defense has the burden of showing as a matter of law that no material issue of fact exists for one or more elements of the plaintiff's cause of action.¹The question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action.²In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in the non-movant's favor.³Issues not expressly presented to the trial court, however, may not be considered by the appellate court as grounds for reversal of a summary judgment.⁴Finally, when a summary judgment order does not state the specific grounds upon which it is granted, a party appealing from the judgment must show that each of the independent arguments alleged in the motion for summary judgment was insufficient to support the order.⁵

The Johnsons' Motion for Summary Judgment

The Johnsons filed a motion for summary judgment asserting that as a matter of law they did not breach a duty owed to Imogene and that no material issue of fact existed to prove that her injuries were proximately caused by a breach of that duty or a defect in the stairs.The trial court granted the motion but did not state the specific grounds upon which it was granted.

Duty Owed to a Licensee

The duty owed by the Johnsons to Imogene, as a licensee, was not to injure her by willful or wanton conduct or by gross negligence.⁶However, if the owner or occupier has actual knowledge of a dangerous condition and the licensee does not, the owner or occupier owes a duty to correct the defect and make the condition reasonably safe or to warn the licensee of the condition.⁷Under another exception to the general rule, when a new peril is presented from changed conditions, the owner or occupier has an active duty to exercise reasonable care to safeguard a licensee from the new or sudden peril.⁸Stated another way, even a licensee has the right to require that the owners or occupiers conduct themselves so as not to injure their guest through their active negligence.⁹

In point one Wochner contends that the court erred in granting summary judgment in favor of the Johnsons because there was evidence they breached their duty to Imogene, as a licensee.The Johnsons argued in their motion for summary judgment that they were not grossly negligent because no act or omission was the result of their actual conscious indifference to Imogene's safety or welfare and that they did not have actual knowledge of a dangerous condition existing in their home.At oral argument Wochner's counsel conceded, in light of the Texas Supreme Court's opinion in Moriel, ¹⁰ that it would be impossible to prove gross negligence under the facts of this case.With regard to the Johnsons' actual knowledge of a dangerous condition, however, their summary judgment evidence fails to establish that there is no genuine issue of material fact.The Johnsons' motion refers only to the affidavit of Gerlene Johnson as summary judgment evidence.By affidavit, Gerlene stated:

My twin sister, Imogene Wochner, and her son, Bryan Wochner, were present at my home near Frost, Navarro County, Texas on February 12, 1990.At that time, Bryan Wochner was three (3) years old.

Imogene and I had just finished moving a couch from upstairs to the living area which is located downstairs by sliding the couch down the handrail of the stairs.I was walking toward the kitchen when I heard a single noise near the front door.I turned around and saw Imogene lying still between the foot of the stairs and the front door.I did not see how Imogene came to be in this position.She was lying on her back with her head next to the front door.Her feet were on the bottom step of the stairs.She appeared to be unconscious.I immediately called for an ambulance on the telephone.

Gerlene's affidavit does not address the Johnsons' actual conscious indifference to Imogene's safety or their actual knowledge of a dangerous condition existing in their home.Although, like Wochner, the Johnsons focus on whether "there was evidence they breached their duty" to Imogene, the defendant in state court is not entitled to a summary judgment merely because there is "no evidence" to support the plaintiff's allegations.¹¹The burden of proof never shifts to the non-movant unless and until the movants have established their entitlement to a summary judgment as a matter of law.¹²Because the Johnsons' summary judgment proof fails to establish as a matter of law that there is no genuine issue of fact on the issues of the Johnsons' actual conscious indifference to Imogene's safety or their actual knowledge of a dangerous condition existing in their home, we sustain point of error one.¹³

In point two Wochner contends that the court erred in granting summary judgment in favor of the Johnsons because they owed a duty to exercise reasonable care as the builders of the stairs.The Johnsons argued in their motion for summary judgment that they did not breach any duty owed to Imogene, as a licensee.Wochner's theory is that the Johnsons exposed Imogene to the unreasonable risk of a fall by negligently constructing the stairs.However, recovery on a negligent-activity theory requires the person to have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.¹⁴As our Supreme Court noted in Keetch, at some point, almost every artificial condition can be said to have been created by an activity.¹⁵Nevertheless, the Supreme Court declined to eliminate all distinctions between premises conditions and negligent activities.¹⁶Imogene may have been injured by a condition created by the negligent construction of the stairs, but she was not injured by the activity of construction.¹⁷Because Wochner could not recover under a negligent activity theory, the trial court properly granted summary judgment on that ground.We overrule point of error two.

Proximate Cause

In point four Wochner contends that the court erred in granting summary judgment in favor of the Johnsons because "there was evidence that the subject stairs were a proximate cause of the fall and subsequent...