Opinion
Civil Action No. 1:03-CV-076-C.
June 4, 2004
MEMORANDUM OPINION AND ORDER
BEFORE THE COURT FOR CONSIDERATION is Defendant UNITED STATES OF AMERICA's ("Defendant" or "United States") Motion for Summary Judgment and Brief in Support with Appendix, filed with this Court on March 15, 2004. The Court also has before it for consideration Plaintiffs Judy McCrary ("Mrs. McCrary") and Alan S. McCrary's ("Mr. McCrary") (jointly, "Plaintiffs" or "McCrarys") Response and Brief in Support with Appendix, filed on April 5, 2004. After careful consideration of the papers, pleadings, and evidence filed in this case, together with the arguments and authorities, the Court is of the opinion that Defendant's Motion should be DENIED for the following reasons:
I. BACKGROUND
The McCrarys have brought this suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1), for injuries suffered by Mrs. McCrary while attending a United States Marine Corps ("USMC") recruitment event ("the event") at the Naval Air Station Joint Reserve Base ("JRB") in Abilene, Texas, on March 24, 2001. (Pls.' First Am. Compl. at ¶ 6). Mr. McCrary also brings claims, as the husband of Mrs. McCrary, for loss of consortium resulting from the injuries she suffered. ( Id. at ¶ 7). The event at the JRB that Mrs. McCrary attended was scheduled as an opportunity for recruits and their parents to become acquainted with the training process and to ask questions, followed by a lunch for the recruits and their parents. (Pls.' App. to Mot. Summ. J. Ex. B at 5, Aff. of Gysgt. J.D. Huddleston). She had been invited to the event by the officer in charge of the recruiting office in Abilene, Texas, who had been involved in recruiting Mrs. McCrary's minor son, Alan, into the Delayed Entry Program of the USMC. ( Id.; Ex. A at 2, Aff. of Judy McCrary). The McCrarys did not pay any admission fee to attend this event at the JRB, entrance to which is restricted to members of the United States armed forces and other persons properly authorized. (Def's. App. to Mot. Summ. J., Ex. 1, Aff. of Claudio Brown; Ex. 2, Aff. of Jack Ely).
During the course of the event, which was moved to a location inside a hanger because of inclement weather, Mrs. McCrary attempted to climb up a flight of wooden stairs located next to a stage so that she could obtain a better view of the event. (Ex. B at 5). The stairs, which did not bear any signs restricting access to them, collapsed while Mrs. McCrary was still on them. ( Id.; Ex. C at 13-15, Depo. of Judy McCrary). The injuries which Mrs. McCrary alleges she suffered as a result of the collapse of the stairs are the basis of her suit against the United States under the Federal Tort Claims Act. (Pls.' First Am. Compl. at ¶ 6; Ex. C at 16, 20). The United States argues that Mrs. McCrary's status while present at the event at the JRB was that of a licensee and not an invitee, and that under Texas law, the only duty it owed to her was to not injure her willfully, wantonly, or through gross negligence, and to warn her of, or to make safe, any dangerous condition of which it had knowledge. (Def's. Mot. Summ. J. at 7). The United States submits that Mrs. McCrary makes no claim that the United States' action or inaction was willful or wanton, or that it constituted gross negligence and, furthermore, that there is no evidence that it was aware of the unsafe condition of the stairs that collapsed. ( Id. at 7-8). Consequently, the United States argues that, as a matter of law, Mrs. McCrary had the status of a licensee and, as such, the United States did not violate any duty it owed to Mrs. McCrary. ( Id. at 6-8). The United States also contends that absent any breach of duty as to Mrs. McCrary, Mr. McCrary's cause of action must fail as a matter of law. ( Id. at 9).
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotes omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R.CIV.P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. The pleadings are not summary judgment evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) (quoting Celotex, 477 U.S. at 324). Absent a showing that there is a genuine issue for trial, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995).
A party moving for summary judgment may support that motion with appropriate evidence in an attempt to negate an essential element of the non-movant's claim or defense, but summary judgment is also appropriate when the movant shows that there is no evidence to support an essential element of the non-movant's claim or defense. See Celotex, 477 U.S. at 322 (1986). In order to withstand a no-evidence motion for summary judgment, the non-movant must present evidence sufficient to establish the existence of each element of his claim as to which he will have the burden of proof at trial. Id. The purpose of summary judgment, as the Supreme Court has instructed, is to "enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990); Liquid Air Corp., 37 F.3d at 1075. A court is to resolve all factual controversies in favor of the non-movant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Liquid Air, 37 F.3d at 1075. Summary judgment is appropriate when a party fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322 (1986).
III. DISCUSSION
Under Texas law, a claim for negligence requires proof of four elements: (1) that defendant owed plaintiff a specific duty; (2) that defendant breached that duty; (3) that the breach of that duty caused plaintiff's injury; and (4) that plaintiff suffered damages as a result of the injury. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002). Under Texas premises liability law, the specific duty owed to a party is determined by that party's status as either an invitee, a licensee, or a trespasser, when injured. Lechuga v. So. Pac. Transp. Co., 949 F.2d 790, 794 (5th Cir. 1992). The determination of a party's status is a legal question for the court except where sufficient issues of fact exist to warrant submission to a jury. Id.; Fort Bend Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991) ("The existence of a legal duty is a question of law for the court although in some instances it may require the resolution of disputed facts or inferences which are inappropriate for legal resolution.").
The United States argues that Mrs. McCrary's status while attending the event at the JRB was that of a licensee, not an invitee. A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Knorpp v. Hale, 91 S.W.2d 469, 471 (Tex.App.-Texarkana 1998, no writ). A licensee, though present on the premises with the consent of the possessor, nevertheless is there for her own convenience or on business for someone other than the owner of the premises. Id. Under Texas law, a social guest, even though invited, is categorized as a licensee. Dominguez v. Garcia, 746 S.W.2d 865, 866 (Tex.App.-San Antonio 1988, writ denied). In the absence of a relationship that inures to the benefit of the entrant on to the premises and the owner, the entrant must be considered a licensee. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex.App.-Waco 1995, no writ). A premises owner owes a duty to a licensee to not injure her "willfully, wantonly, or through gross negligence." Lechuga, 949 F.2d at 799. The only exception to this standard of care is that "when a possessor has knowledge of a dangerous condition on the land, and the licensee does not, the possessor has a duty either to warn the licensee or to make the condition reasonably safe." Id. at 794-95.
The term "invitee" is a legal term of art that is more limited than the general sense of the term "invitation," Lechuga, 949 F.2d at 795. In Texas, there are two types of invitees. A public invitee is one who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public. Id. A business invitee is a person (1) who is expressly or impliedly invited to enter or remain on land and (2) whose presence there directly benefits the possessor/owner of the land Id. at 795-96.
Although the United States admits that Mrs. McCrary was invited to the event at the JRB, it contends that she nevertheless was there merely as a social guest and solely for her own purposes. The United States contends that the JRB is a closed base that is not held open to the public. The United States further contends that Mrs. McCrary had no business dealings on the JRB and conveyed no direct pecuniary benefit to it by her presence there. Consequently, the United States argues, she did not have the status of either a public or business invitee while on the JRB and must therefore be characterized as a licensee. As such, the United States did not violate the duty of care it owed to her as a licensee while at the JRB because Plaintiffs have not alleged that the United States injured her willfully, wantonly, or through gross negligence, nor have Plaintiffs adduced any evidence that the United States had knowledge of the dangerous condition posed by the stairs on its property at the JRB. Plaintiffs respond that the facts show that Mrs. McCrary was present at the JRB in the status of an invitee and thus summary judgment for the United States that it did not breach its duty of care to Mrs. McCrary as a licensee is therefore improper.
A non-military person whose presence is authorized on a military base that is otherwise closed to the public can not be considered a public invitee. See Barta v. United States, 898 F. Supp. 439, 442 (W.D. Tex. 1995). The evidence clearly establishes that entrance on to the JRB is restricted to members of the United States armed forces and other persons properly authorized. The JRB is not open to the public generally and Mrs. McCrary's presence there, whether she was formally invited or not, can not be construed to be that of a public invitee. However, if there are disputed issues of material fact which, if resolved in favor of Plaintiffs, would establish Mrs. McCrary's status as a matter of law as a business invitee, then this Court can not grant the summary judgment the United States seeks. The undisputed evidence before this Court clearly establishes that Mrs. McCrary was invited to attend the event at the JRB and that she therefore fulfilled the first prong of the business invitee test. Whether she could be categorized as a business invitee must therefore turn on the second prong, which establishes the key difference between a licensee and an invitee, i.e., that "an invitee's presence on the premises conveys a mutual benefit on the entrant on to the premises and the premise's owner, while a licensee is present only for her own purposes and not because of any business dealings with the owner." Peerenboom, 910 S.W.2d at 163. Thus, if there is no evidence that Mrs. McCrary's presence conveyed any benefit to the USMC and the United States, or if the evidence is conclusive that she was present only for her own benefit and not because of any business dealings with the USMC or the United States, then she can not be a business invitee and must therefore be a licensee as a matter of law.
The Texas Supreme Court has defined the true test to be applied for determining whether there is a "mutual benefit" as whether the owner of the premises receives a benefit or advantage from the permitted presence of another on the land See Olivier v. Snowden, 426 S.W.2d 545, 549 (Tex. 1968) (citing the "mutual advantage" test established in Arthur v. Standard Engineering Co., 193 F.2d 903 (D.C. Cir. 1951)). The Texas Supreme Court alternatively stated the test as "whether there existed mutual interests and mutual advantages to the parties concerned." Id. at 550 (citing the test from Munson v. Vane-Stecker Co., 79 N.W.2d 855, 861 (Mich. 1956)). Where there is merely a mutual or reciprocal use of the property by the owner and the one permitted thereon, the fact that there is some incidental benefit to the owner by the permitted use does not mean that a benefit has inured to the owner sufficient to establish the requisite "mutual benefit" necessary to acquire invitee status. See id.
This test is essentially the same as that espoused by the United States Supreme Court in Bennett v. Louisville Nashville R.R. Co., 102 U.S. 577, 584-85, 26 L.Ed. 235 (1881), also cited by the Texas Supreme Court. The Court in Bennett said, "The principle . . . appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."
The United States argues that this case is factually similar to Barta v. United States, 898 F. Supp. 439. In Barta, the mother of a military dependant brought suit under the FTCA against the United States for injuries she suffered falling on steps outside the chapel at Lackland Air Force Base while attending a Christmas mass. The district court determined that the woman was a licensee because her presence on the base to attend church services "was for her own interest, purpose, benefit, convenience, and pleasure." Id. at 442. The facts pertaining to the nature of the event in this case, however, clearly distinguish it from a church service as in Barta. Here, there is evidence that the purpose of the event was "to introduce new recruits and their families to the Marine Corps lifestyle." (Ex. 1 at 1). Although this event surely served to benefit Mrs. McCrary's own interests and purposes, it could also be inferred from this evidence of the event's purpose that Mrs. McCrary's presence conveyed a mutual benefit to the USMC and the United States as well.
The United States argues, however, that under Texas law the mutual benefit must be in the nature of a direct pecuniary benefit to the possessor of the land in order for the entrant on the land to be considered a business invitee. The United States cites to the Fifth Circuit case of Lechuga in support of this argument. See Lechuga, 949 F.2d at 797 ("For a claimant to meet the benefit prong of the invitee test, the benefit a possessor derives from the claimant's presence must be a direct pecuniary benefit.") (emphasis in original) (citing Prestwood v. Taylor, 728 S.W.2d 455, 458-59 (Tex.App. — Austin 1987, writ ref'd n.r.e.) and generally to Olivier, 426 S.W.2d at 545). Lechuga, Olivier, and Prestwood, however, although announcing the principle that a direct pecuniary benefit is necessary to meet the second "mutual benefit" prong of the invitee test, were all cases where no express invitation existed and it was necessary to imply the invitation required by the first prong of the test. The invitee test is a conjunctive test, and a finding that the entrant was expressly or impliedly invited on to the premises is not dispositive of whether the entrant is a business invitee. Lechuga, 949 F.2d at 797.
Olivier, the first Texas Supreme Court case announcing the pecuniary benefit requirement, was a case where the plaintiff was an employee of one construction contractor who was injured while using the scaffolding owned by another contractor. The Olivier court held that the plaintiff was using the scaffolding "by acquiescence and not by invitation" and that since the owner of the scaffolding was unaware of the unsafe condition, "in no event [could defendant] be compelled to respond to [plaintiff] in damages." Olivier, 426 S.W.2d at 550. In the court's words, "Permission is not sufficient to turn the scale in favor of [plaintiff's] status being that of an invitee. . . . A permission, whether express or implied, is not an invitation to enter or use, and establishes no higher relation than that of mere licensor and licensee." Id. (internal quotations and citation omitted).
Having determined that there was no higher duty imposed by an invitee relationship, the court in Olivier went on to discuss "the theory that the mutual use of scaffolds as described here inured to the benefit of [defendant] merely because such use of scaffolds would result in saving the extra cost of tearing down another contractor's scaffold and erecting one in its place." Id. The court concluded that "the facts here do not meet the true test under the mutual advantage theory," because, in order to establish the second "mutual benefit" prong where the invitation requisite to the first prong must be implied from the mutual use of the scaffolds, "the `business' on which the visitor comes must be one of at least potential pecuniary profit to the possessor." Olivier, 426 S.W.2d at 550 (citing PROSSER ON TORTS 396 (3d ed.)). The import of the Olivier court's conclusion is that a permitted mutual use does not necessarily confer mutuality of benefits, and without the prospect of some pecuniary profit, no hypothetical or attenuated benefit can turn a custom of mutual use into an implied invitation.
That this principle of pecuniary benefit applies only to situations where an invitation must be implied, and not where it is express, is clear from the quotation the court makes immediately after its earlier decision in Cowart v. Meeks: "In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee." Cowart v. Meeks, 111 S.W.2d 1105, 1107 (1938). The court's concluding remark further reinforces this understanding when it states, "The true test to be applied in the present case is whether the owner of the scaffold or other appliances receives benefit or advantage from the permitted use by another." Olivier, 426 S.W.2d at 552. However, the strongest indication that the opinion is limited to circumstances involving implied invitations is supplied by the dissent in Olivier. Justice Greenhill, dissenting, objects that "the majority's statement that `the evidence shows at most that [plaintiff] was using and occupying the scaffold by acquiescence and not by invitation' ignores the evidence that the custom of sharing scaffolds was mutually advantageous. Thus an implied invitation should be inferred because the acquiescence or permission was given for business reasons, indirectly beneficial to defendant." Id. at 553.
Even Prestwood, which cites Olivier for the principle that Texas requires that a pecuniary benefit must be shown, places this requirement in the context of the kind of evidence that is "legally and factually" sufficient to support a determination that an implied invitation existed. Prestwood, 728 S.W.2d at 464. The Prestwood court concluded that a mere finding of "mutual aid," which was "evidently intended to supply the other element essential to constitute [plaintiff] a `business visitor,' . . . is obviously indirect and falls short of the direct pecuniary benefit required under Texas law." Id. This Court interprets Prestwood in light of its understanding of Olivier as requiring evidence of a pecuniary benefit in limited circumstances involving implied invitations, and not as announcing a general modification of the second prong of the "business invitee" test. Clearly, this is a sound rule where the court is being asked to find that an implied invitation exists. However, such is not the circumstance in the instant case where there is evidence of an express invitation. Furthermore, the Court understands the holding of Lechuga to be limited to cases involving implied invitations and, as such, does not apply it to the instant case. Thus the United States is not entitled to summary judgment as a matter of law.
The Texas Supreme Court, in subsequent opinions involving business invitees, did not add the requirement of a pecuniary benefit to the general rule it had held to all along. See, e.g., Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975) ("An invitee has been described as one who enters on another's land with the owner's knowledge and for the mutual benefit of both.") (citing to Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex. 1950) with no indication that the intervening Olivier decision has changed the general test).
IV. CONCLUSION
After considering all the relevant arguments and evidence, the Court finds that genuine issues of material fact exist in this case and that Defendant United States is not entitled to summary judgment as a matter of law. Therefore, Defendant United States' Motion for Summary Judgment is hereby DENIED.SO ORDERED.