Opinion
No. 04-14-00899-CV
04-29-2016
Laura Leticia Zepeda VASQUEZ, Individually and on behalf of the Estate of José Abraham Vasquez Jr., Appellant v. LEGEND NATURAL GAS III, LP; Legend Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties, Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex Operating Company, Inc.; Enterprise Products Holdings, LLC; Enterprise Products Company; and XTO Energy, Inc., Appellees
CONCURRING OPINION
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 14-07-00119-CVL
Honorable Donna Rayes, Judge Presiding Opinion by: Patricia O. Alvarez, Justice
Concurring Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
The Honorable Stella Saxon, Presiding Judge of the 218th Judicial District Court, presided over the hearing concerning the Rule 91a motion and signed the original order, dated November 20, 2014, dismissing Appellant Laura Vasquez's claims against Appellees. The January 5, 2015 order on appeal is the corrected order signed by the Honorable Donna Rayes, Presiding Judge of the 81st Judicial District Court. --------
Laura Vasquez contended at oral argument that a Rule 91a motion was premature because additional time for discovery was necessary to develop the facts of the underlying case. Vasquez implies that had she had an opportunity to engage in additional discovery, she would have been able to plead facts to establish appellees owed a duty to repair or warn of a dangerous condition on a public road. Vasquez did not raise these issues in her brief and, thus, addressing them is not necessary to the disposition of the appeal. See TEX. R. APP. P. 38.1(i); TEX. R. APP. P. 47.1. Although I join the majority's opinion and judgment, I write separately because these issues raise important questions about whether Vasquez could have pled additional facts in support of the alleged cause of action to establish appellees owed a duty.
RULE 91A
The legislative history and the plain language of Rule 91a assist trial courts in determining whether a Rule 91a dismissal is appropriate or whether the claimant should have an opportunity to conduct additional discovery. In 2011, the Texas Legislature enacted section 22.004(g) of the Civil Practice & Remedies Code and required the Supreme Court of Texas to "adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence." TEX. GOV'T CODE ANN. § 22.004(g) (West Supp. 2015). The legislative history reflects an intent to provide for the "early dismissal of actions" involving causes of action that lack a basis in law or fact. Texas House Research Organization, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). The purpose was "to make the civil justice system more efficient, less costly, and more accessible by reforming certain procedures in these cases and making available certain new procedures." House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011); Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011). To implement section 22.004(g), the supreme court adopted Rule 91a, which allows a party to file a motion to dismiss "within 60 days after the first pleading containing the challenged cause of action is served on the movant." See TEX. R. CIV. P. 91a.3(a) & cmt. (2013).
Rule 91a contemplates that in response to a Rule 91a motion, a claimant may defend or amend her pleadings. See TEX. R. CIV. P. 91a.4, 91a.5. Under Rule 91a.4, a claimant may defend her pleadings by filing a response and arguing her cause of action has a basis in law and fact. TEX. R. CIV. P. 91a.4. Under Rule 91a.5, a claimant may, three days before the hearing on the motion to dismiss, amend her pleadings or nonsuit her cause of action subject to refiling a pleading that alleges sufficient facts. See R. 91a.5(a), (b); see also Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure & Review, 33 REV. LITIG. 469, 519-24 (2014) (describing options to respond to a Rule 91a motion). "Rule 91a does not mention discovery, much less include an automatic stay." Id. at 558-59. The issue of "whether the non-movant has a right to discovery before the motion to dismiss is heard" is "bound to arise under Rule 91a." Id. at 558.
A Rule 91a motion is an appropriate mechanism to challenge the pleadings when the facts pled "together with inferences reasonably drawn from them do not entitle the claimant to the relief sought." TEX. R. CIV. P. 91a.1. When the factual allegations in the plaintiff's petition establish the plaintiff is not entitled to the relief sought as a matter of law, permitting discovery to develop other facts would undermine Rule 91a's purposes and would not place the plaintiff in any better of a position to allege facts entitling her to relief. The matter before us presents such a case.
Here, the Rule 91a motions filed in the trial court were not based on the lack of factual allegations, but on the facts Vasquez had alleged in her first amended petition. Appellees contended the facts Vasquez alleged, taken as true and together with reasonable inferences drawn from them, did not entitle Vasquez to the relief she sought because, as energy companies whose employees drove on a public road to operate and service oil and gas wells, they owed no legal duty to repair or warn of dangerous conditions on a public road. Vasquez suggested at oral argument that additional time for discovery would allow her to develop the facts as to how appellees created the dangerous condition on Krueger Road. Vasquez argued she should have the opportunity to prove whether appellees' vehicles were overweight, oversized, and speeding.
However, based on our limited scope of review, we take as true that appellees' vehicles were indeed, overweight, oversized, and speeding. How their vehicles became so is of no relevance. We also take as true that appellees created a dangerous condition on Krueger Road. Time for additional discovery would only allow Vasquez to attempt to prove how appellees created the dangerous condition. Under the facts of this case, how appellees created the dangerous condition is of no relevance to establish whether appellees owed a legal duty to repair or warn of a dangerous condition on a public road.
DUTY TO REPAIR AND WARN
Users of public roads have a duty of ordinary care not to create foreseeable risks of harm to other drivers on the road. See Hatcher v. Mewbourn, 457 S.W.2d 151, 152 (Tex. Civ. App.—Texarkana 1970, writ ref'd n.r.e.). But "when a claim does not result from contemporaneous activity, the [claimant] has no negligent-activity claim, and his claim sounds exclusively in premises-liability." Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215 (Tex. 2015). A claim does not result from a contemporaneous activity when it is a premises condition, and not a contemporaneous activity, that causes the injury. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). A claim that arises from a dangerous condition on a road, such as a rural unpaved road with potholes, is a premises condition, and a claim based on such a dangerous condition is a premises liability claim. TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009). The same rules of premises liability for private property apply to public property. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).
After the Rule 91a motions were filed in the trial court, Vasquez did not amend her pleadings but, instead, defended her live pleading as alleging sufficient facts to establish appellees owed a duty. See TEX. R. CIV. P. 91a.4, 91a.5. Vasquez alleged the following facts:
Every day, [appellees] sent, and still sends numerous loaded and unloaded trucks up and down Krueger Road in La Salle County, Texas to operate and service the wells. [Appellees], knowing La Salle County could not repair Krueger Road as fast as [appellees] destroyed it, created a dangerous condition for all drivers on Krueger Road. Even though [appellees] created a dangerous condition, they failed to fix the road, and/or provide any warnings to drivers on Krueger Road.In the "Causes of Action" section of her pleading, Vasquez further alleged:
On August 4, 2012, Jose Vasquez was operating a vehicle on Krueger Road when a cloud of dust caused him to lose sight of the road. The cloud of dust was caused by the dangerous condition of the road and the negligent driving of a Lewis Energy truck travelling immediately in front of Jose Vasquez. Because of the dilapidated and dangerous condition of the road, it was impossible for Jose Vasquez to see where the road was. He drove into a ditch which caused his vehicle to flip over. Jose Vasquez died as a result of the incident.
Krueger Road was once a safe, paved road for the public. Now, Krueger Road is a dilapidated, dangerous, dirt road with potholes, bumps, crevices and no markings left to determine the proper lanes of travel. The reason Krueger Road is so dangerous is because of the [appellees'] actions. [Appellees'] drivers continually drive down Krueger Road at a high rate of speed, operate heavy and maybe overweight vehicles on Krueger Road, and operate vehicles that [appellees] knew Krueger Road could not handle.The trial court severed Vasquez's "negligent driving" cause of action against the Lewis appellees into a new case.
Vasquez's remaining cause of action is based on injury caused by the condition of a road, and sounds exclusively in premises liability. See Austin, 465 S.W.3d at 215; TXI Operations, L.P., 278 S.W.3d at 764-65; Keetch, 845 S.W.2d at 264; cf. Tennison, 509 S.W.2d at 562. Vasquez alleged Jose died in a car accident because "it was impossible for Jose Vasquez to see where the road was." Vasquez alleged "the dilapidated and dangerous condition of the road" caused Jose's inability to see where the road was. Thus, it was the condition of the road, not appellees' negligent or illegal operation of speeding, overweight vehicles that caused Jose's inability to see where the road was.
Relying on Buchanan v. Rose, Vasquez argues appellees had a "duty to do something" because they knowingly created a dangerous condition on Krueger Road. 138 Tex. 390, 159 S.W.2d 109 (1942). In her brief, Vasquez argues that the "something" in this case was to repair and warn about the dangerous condition on Krueger Road. Although Vasquez alleged the dangerous condition was that Krueger Road was dilapidated and covered with potholes, bumps, crevices, and dirt, Vasquez stated at oral argument she was not arguing appellees had a duty to re-construct the road. Instead, Vasquez argued appellees had a duty to repair by "taking a water truck down the road once a day" and a duty to erect warning signs along Krueger Road.
However, a duty to repair or warn of a dangerous condition on a premises generally does not extend to those who do not own, possess, or control the premises. See Allen Keller Co. v. Foreman, 343 S.W.3d 420, 426 (Tex. 2011). Individuals who drive on public roads exercise a public right of access, but they do not own, possess, or control public roads. See id. at 425-26. In Allen Keller Co. v. Foreman, the supreme court held that a contractor who created a dangerous condition on a public road had no duty to repair or warn of a dangerous condition. Id. The supreme court rejected the argument that the contractor had a duty to warn drivers because the contractor "did not own the property or the highway right-of-way, and was not in a position to erect permanent signs or other devices to warn the public of the [condition]." Id. The supreme court also rejected the argument that the contractor had a duty to repair the dangerous condition, in part, "because [the contractor] did not own the property, [and] it was not in a position to make decisions about how to make the premises safe." Id. at 426. Generally, the same is true of drivers who use public roads.
Furthermore, Buchanan is not controlling because the supreme court therein held that the defendant driver had no legal duty to warn other drivers. 138 Tex. at 392-93. The supreme court explained that, in other cases with different facts, a driver would have the duty to warn other drivers of a dangerous condition that the driver created, even if the condition was not negligently created. See id. at 391-92. This discussion was dicta, and the laws and standards for road safety have significantly changed since the early 1940s. The supreme court's much-more-recent holdings in Allen Keller Co. and in Austin further limit the persuasiveness of Buchanan's dicta.
CONCLUSION
We need not decide in this case what the "something" is, if anything, appellees had a duty to do. Vasquez argues that appellees had a duty to take water trucks up and down Krueger Road or to warn other drivers by erecting signs in the public right of way. Here, they do not. Vasquez's cause of action sounds exclusively in premises liability under Austin. Under Allen Keller Co., a premises-liability duty to repair or warn about a dangerous condition on a public road does not extend to an individual who does not own, possess, or control the road, even if the individual created the dangerous condition. Because we must take as true Vasquez's allegation that appellees created the dangerous condition on Krueger Road, the manner in which appellees created the dangerous condition is not relevant to whether appellees owed a legal duty to repair or warn if appellees did not own, posses, or control Krueger Road. Permitting Vasquez to conduct additional discovery to develop facts about how appellees created the dangerous condition on Krueger Road would therefore defeat Rule 91a's purposes and would not place Vasquez in any better of a position to allege facts that appellees owned, possessed, or controlled Krueger Road or establish her entitlement to the relief sought.
Luz Elena D. Chapa, Justice