Opinion
No. 07-18-00407-CV
08-13-2020
BOBBY D. HAWES, APPELLANT v. LINK MINISTRIES, INC., A TEXAS NON-PROFIT ORGANIZATION, APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2017-526,603; Honorable Les Hatch, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Bobby D. Hawes, appeals the trial court's summary judgment in favor of Appellee, Link Ministries, Inc., a Texas Non-Profit Organization, in this premises liability suit. By a sole issue, Hawes contends the trial court erred in granting Link Ministries, Inc.'s hybrid motion for summary judgment because genuine issues of material fact exist. We agree and reverse the judgment of the trial court.
BACKGROUND
Hawes had been volunteering for Link Ministries, Inc. since 2010. During that time, he had been permitted to store the tools of his trade on site. In August 2015, Hawes was asked by Link Ministries, Inc. to remove his property from the premises. In doing so, he was allowed onto the premises by a volunteer who, according to Link Ministries, Inc., was not an employee and did not have authority to act on its behalf. While Hawes was on an interior metal roof retrieving his property, he fell through the roof and sustained serious injuries. Hawes's liability theory was that the construction methods used to build the interior roof (construction work performed by agents of Link Ministries, Inc.) created an unreasonable risk to persons on that roof, which caused him to fall, resulting in his injuries.
After Hawes filed suit against Link Ministries, Inc. based upon his premises-liability theory, Link Ministries, Inc. filed a hybrid traditional and no-evidence motion for summary judgment alleging (1) that Hawes did not have permission to be on its property (i.e., that he was a trespasser) and alternatively, (2) that if he did have permission, he was at best a licensee. They further alleged he had actual or constructive knowledge of the alleged dangerous condition because he had observed the roof during its construction and had previously walked on the roof. Despite having notice of the summary judgment hearing, Hawes did not file a response or present any summary judgment evidence on his own behalf. On submission, the trial court granted summary judgment in favor of Link Ministries, Inc. ordering that Hawes take nothing by his suit. A final judgment was entered; however, that judgment was silent as to whether the trial court granted the no-evidence or traditional motion.
When, as here, a party has sought summary judgment on both no evidence and traditional grounds, we review the propriety of the summary judgment under the no-evidence standard first. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Only if the no-evidence summary judgment is not sustainable do we turn to the merits of the traditional summary judgment.
STANDARD OF REVIEW—NO-EVIDENCE SUMMARY JUDGMENT
A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict, and we apply the same legal sufficiency standard as we apply in reviewing a directed verdict. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). In a no-evidence summary judgment motion, the movant contends there is no evidence of one or more essential elements of the nonmovant's claim, for which the nonmovant would bear the burden of proof at trial. TEX. R. CIV. P. 166a(i). Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). Once the movant's burden is met, the burden shifts to the nonmovant to present evidence raising an issue of material fact as to the elements of its cause of action. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When a proper no-evidence motion for summary judgment has been filed, the trial court must grant the motion unless the record contains more than a scintilla of competent summary judgment evidence raising a genuine issue of material fact on the challenged elements. See Hamilton, 249 S.W.3d at 426. The nonmoving party is not required to marshal its proof; and its response need only point out evidence that raises a fact issue on the challenged essential element. TEX. R. CIV. P. 166a(i), Notes and Comments (1997); Hamilton, 249 S.W.3d at 426.
We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A no-evidence challenge will be sustained 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 scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, 118 S.W.3d at 751. A fact issue exists if there is more than a scintilla of probative evidence. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012).
APPLICABLE LAW—PREMISES LIABILITY
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, 127 Tex. 126, 91 S.W.2d 302, 306 (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. See Boerjan 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 or occupier's consent and for the licensee's own convenience. Wilson, 576 S.W.3d at 850 (finding that claimant was a licensee when he was injured on the premises of a hospital while visiting his wife, a patient in that hospital). 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 or occupier's failure was a proximate cause of injury to the licensee. Wilson, 576 S.W.2d at 851.
An invitee is a person who enters on the property of another, at the owner or occupier's express or implied invitation, for the mutual benefit of the parties. Rosas, 518 S.W.2d at 536 (citing RESTATEMENT (SECOND) OF TORTS § 332 (1965)). 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 against danger 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); Daniels v. Allsup's Convenience Stores, Inc., No. 07-18-00333-CV, 2020 Tex. App. LEXIS 2583, at *8-9 (Tex. App.—Amarillo March 26, 2020, pet. filed) (mem. op.). Several courts, including the Texas Supreme Court and this court, have identified the essential elements of a premises liability cause of action as to an invitee to 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 by either (a) failing to make the condition reasonably safe (eliminate the risk) or (b) failing to adequately warn of the premises defect (reduce the risk), and (6) the defendant's breach proximately caused the claimant's injuries. CMH Homes, Inc., 15 S.W.3d at 99; Daniels, 2020 Tex. App. LEXIS 2583, at *10.
ANALYSIS
Because the claimant's status in a premises liability cause of action determines the degree of care the property owner owes to the injured party, to be entitled to a summary judgment, the property owner must establish the injured party's status, at the time and place of the occurrence, as a matter of law, or it must negate an essential element of the nonmovant's claim as to every potential status. Here, Link Ministries, Inc. maintains Hawes was a trespasser; however, summary judgment evidence (discussed more fully below) supports an argument that he was an invitee since he was asked to come onto the premises to remove his stored materials and tools—a matter potentially for the mutual benefit of both parties. Therefore, because Link Ministries, Inc. has not established, as a matter of law, Hawes's status with respect to the property at the time of his injury, a fact question exists. As such, Link Ministries, Inc. would not be entitled to a no-evidence summary judgment unless it negated an essential element of Hawes's cause of action based on his potential status as a trespasser, licensee, and invitee.
As we have previously noted, in a no-evidence summary judgment motion, the movant "must state the elements as to which there is no evidence." TEX. R. CIV. P. 166a(i). In that regard, Link Ministries, Inc.'s motion for summary judgment alleges Hawes had "no evidence to show":
(1) No evidence that [Hawes] was an invitee at the time of the incident;
(2) No evidence that [Hawes] had permission or consent from an owner of, Link Ministries to be on the premises at the time of the incident;
(3) No evidence of any kind related to permission or consent of an owner of the premises allowing [Hawes] to be on the premises at the time of the fall;The nature of a summary judgment proceeding necessitates that we review these "no evidence" allegations seriatim.
(4) No evidence that Defendant Link Ministries had any duty to [Hawes] on the date of the incident;
(5) No evidence that Defendant Link Ministries acted willfully, wantonly or with gross negligence as it relates to [Hawes];
(6) No evidence disputing that [Hawes] had actual knowledge of the roof and the alleged dangerous condition;
(7) No evidence disputing that [Hawes] had constructive knowledge of the roof and the alleged dangerous condition;
(8) No evidence that Defendant Link Ministries, breached any duty to [Hawes].
As to the first, second, and third allegations, regarding Hawes's status as an invitee and his permission to be on the premises at the time of the incident, we find there is more than a scintilla of summary judgment evidence supporting a finding that Hawes's status was that of an invitee and that he had permission to be on the premises in question. Specifically, the summary judgment evidence includes the deposition testimony of Hawes. In that deposition, he describes a mutually-beneficial arrangement where he provided handyman services to Link Ministries, Inc. in exchange for a place to store the tools of his trade and "a shop that I could work out of." He further described how, on the date of the incident in question, he was on the premises of Link Ministries, Inc. at its specific request, for the express purpose of removing his possessions, and that he had purposefully met a representative of Link Ministries, Inc. at the property for that explicit purpose. Accordingly, this allegation will not support a no-evidence summary judgment.
The fourth allegation, that there was no evidence that Link Ministries, Inc. owed a duty to Hawes, is a non sequitur. A property owner's duty to a person injured on the property as the result of an unreasonably dangerous condition is a matter of law determined by the status of the injured party in relationship to the property. Where, as here, no one has disputed that the condition of the property was unreasonably dangerous, a duty based on Hawes' status, whatever that may be determined to be, arises as a matter of law. As such, this allegation will not support a no-evidence summary judgment.
Regarding the fifth allegation, contending that there was no evidence that Link Ministries, Inc. acted willfully, wantonly, or with gross negligence, we find there is more than a scintilla of summary judgment evidence supporting a finding of willful and wanton conduct. Specifically, Hawes's deposition testimony showed that at one point, he found himself stranded on the roof in question, with no visible means of getting down. When Hawes requested a ladder, Link Ministries, Inc.'s representative refused to get him one because "it's in the other warehouse. I don't want to go get it." Not once, but three times, he refused Hawes's request for assistance. Hawes was injured shortly thereafter when he traversed the roof, at the direction of Link Ministries, Inc.'s representative, so that he could climb down utilizing a chain-link fence instead of a ladder. Based on this evidence, we find a reasonable juror could conclude such acts were willful and wanton and that Hawes's injuries were proximately caused by such conduct. As such, this allegation does not support the entry of a no-evidence summary judgment.
Deposition testimony established that Hawes was on an interior roof for the purpose of removing some insulation he had stored in the building in question and that a representative of Link Ministries, Inc., not Hawes, had placed the insulation on the roof.
The sixth and seventh allegations are triple-negative conundrums. Read grammatically, Link Ministries, Inc.'s summary judgment motion alleges there was "no evidence of the following: (6) No evidence disputing that [Hawes] had actual knowledge of the roof and the alleged dangerous condition; (7) No evidence disputing that [Hawes] had constructive knowledge of the roof and the alleged dangerous condition." While it is possible to decipher this grammatical gobbledygook as an allegation that Hawes had personal knowledge of the unreasonably dangerous condition, any such knowledge was not established as a matter of law. Furthermore, Hawes's lack of knowledge is not an "essential element" of all of his claims. It is only an essential element of a premises liability suit involving a licensee. Accordingly, Link Ministries, Inc. was not entitled to a no-evidence summary judgment on the basis of these allegations.
Finally, Link Ministries, Inc.'s eighth allegation is there was no evidence that it breached any duty owed to Hawes. Again, the breach of a duty is a conclusion of law, based on the facts. Because we find there is more than a scintilla of evidence supporting a fact finding that would impose a duty on a property owner under these circumstances, as well as a conclusion that injuries resulted from a potential breach of that duty, we conclude Link Ministries, Inc. was not entitled to a no-evidence summary judgment based on this allegation.
In summary, Link Ministries, Inc.'s eight no-evidence allegations cannot withstand procedural or evidentiary scrutiny without turning a blind eye to the fact that those allegations contain false factual representations. As such, Link Ministries, Inc.'s no-evidence motion for summary judgment fails to comply with the minimum requisites of a proper summary judgment motion. In his concurring opinion, Chief Justice Quinn reaches the same result, albeit based on his conclusion that a fact issue was inadvertently raised by the summary judgment evidence before the trial court.
In her dissent, Justice Parker dutifully relies upon the express language of Rule 166a(i) and an over-broad reading of an opinion from the Fifth Court of Appeals, B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547 (Tex. App.—Dallas 2017), rev'd on other grounds, 598 S.W.3d 256 (Tex. 2020), to support her focus-locked position that "unless the respondent produces summary judgment evidence raising a genuine issue of material fact" a trial court is somehow duty bound to grant a "default" summary judgment. While we do not disagree with the dissent's proposition of law, we differ in our conclusion based on an implicit presumption in that proposition—i.e., that the movant has filed a proper motion for no-evidence summary judgment in the first place. Here, no duty to respond arose because Link Ministries, Inc.'s no-evidence motion for summary judgment was procedurally defective because it either did not identify an essential element of Hawes's claim upon which there was no evidence or it contained inconsistent and incorrect statements of fact. While the dissent is concerned about the impropriety of putting courts in the position of becoming an advocate for the nonmovant, we remain concerned about the impropriety of putting courts in the position of perpetuating an injustice based on false allegations. As the dissent has rightly stated, Hawe's failure to file a response to Link Ministries, Inc.'s no-evidence motion for summary judgment does not preclude him from challenging the sufficiency of that motion—which is exactly what he has challenged. Viasana v. Ward Cty., 296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.).
While the dissent characterizes this opinion as having been "rev'd on other grounds," we disagree. The Texas Supreme Court reversed the Fifth Court of Appeals's opinion on the basis that the intermediate appellate court failed to properly consider summary judgment evidence before the trial court in its decision affirming a no-evidence motion for summary judgment.
Whether one concludes that Link Ministries, Inc.'s no-evidence motion for summary judgment is procedurally defective or inadvertently raises a fact issue, the result is the same—the motion fails as a matter of law. Therefore, because Link Ministries, Inc. has not established its entitlement to a no-evidence summary judgment, as a matter of law, we now turn to its traditional motion for summary judgment.
STANDARD OF REVIEW—TRADITIONAL SUMMARY JUDGMENT
A trial court's order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274, 278 (Tex. 2018); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). The moving party has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Evidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). All reasonable inferences, including any doubts, must be resolved in favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
ANALYSIS
As discussed above, this is a premises liability suit where a fact issue exists as to Hawes's status with respect to the property in question. Because the resolution of that fact issue ultimately determines the standard of care Link Ministries, Inc. owed to Hawes, we find that Link Ministries, Inc. has not met its burden of establishing its entitlement to a traditional summary judgment, as a matter of law.
CONCLUSION
The trial court's summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
Patrick A. Pirtle
Justice Quinn, C.J., concurring.
Parker, J., dissenting.