APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS
This is an appeal from a take nothing summary judgment in a premises liability case. In one issue, Lacey Calhoun contends the trial court erred in rendering summary judgment against her. Because the motion for summary judgment filed by Dave Overdorf and Lori Overdorf did not address Calhoun's allegations of gross negligence, we reverse the trial court's order granting the Overdorfs' motion for summary judgment on Calhoun's gross negligence claim. In all other respects, the summary judgment is affirmed.
The Overdorfs own a bed and breakfast establishment called Southern Stables, which they rent for weddings, receptions, and parties. Southern Stables is located on a farm and includes a house, barn, courtyard, and adjoining pasture. The Overdorfs rented Southern Stables to Rhonda Boyle for her daughter's wedding and wedding reception, which took place on April 18, 2009. The Overdorfs' contract forbade the use of the tractors, utility vehicles, and other motor vehicles located on the premises.
At about 12:00 or 12:30 a.m. of the next day, April 19, the bride and groom told the Overdorfs that the reception was over and that the three or so people remaining were cleaning up. The Overdorfs left Southern Stables and went home for the night. Sometime before the guests arrived, Dave Overdorf had parked a Rhino utility vehicle in front of the house to prevent the guests from driving into a mud hole in or near the driveway. Overdorf did not see anyone using the Rhino when he left between 12:00 and 12:30 a.m. The keys to the Rhino were in the glove box or the cup holder.
Lacey Calhoun went to the Wild Horse Saloon in Lufkin where she remained until the 1:00 a.m. closing time on April 19. As she walked to her car in the parking lot, a friend, Julie Williams, asked if she wanted to go to a party to which she had just been invited. Calhoun testified that she thought Julie Williams had just received word of the party by telephone or text message. She did not know who asked Julie Williams to the party. Calhoun followed Williams's truck to Southern Stables. When they arrived at Southern Stables at approximately 1:15 a.m., they followed two men in a Rhino down the driveway, past the guesthouse, to the party barn where some people remained drinking and talking. She had been there between five and ten minutes when Matt Cargill asked her to go for a ride in the Rhino. Calhoun had not met Cargill before.
Cargill took her in the Rhino up the driveway into the front pasture where he performed a donut. When he saw the beam from a police car's spotlight shining into the pasture, Cargill quickly turned and drove into the backyard of the guesthouse. Calhoun yelled "look out," because she thought he was about to hit her car. Cargill attempted to do a "180" when the Rhino overturned injuring Calhoun.
Cargill was a member of the wedding party and was scheduled to spend the night at Southern Stables. After the accident, however, Cargill called his girlfriend and asked her to drive him home.
Cargill said that others had been driving the Rhino for an hour or so before his short ride with Calhoun. No one told him he could not use the Rhino, and there were no signs on the premises forbidding the Rhino's use.
Before the accident, the Rhino's manufacturer had notified the Overdorfs that the vehicle was subject to rollovers. The manufacturer offered, at no charge, to extend the back axle to stabilize the Rhino to prevent rollovers and to install doors on it to prevent passengers from being ejected. Although they were aware of the manufacturer's offer, the modifications had not been made. The Overdorfs used the Rhino only in work on the farm, and they believed there was no rollover risk in the way they used it. Until this accident, the Rhino had never been used by the guests at Southern Stables.
Calhoun sued the Overdorfs alleging that she was an invitee on their premises and that the injuries she sustained in the Rhino accident were the result of the Overdorfs' negligence. She later amended her petition to include allegations of gross negligence. The Overdorfs filed a traditional motion for summary judgment, which the trial court granted.
In one issue, Calhoun argues that the trial court erred in granting the Overdorfs' traditional motion for summary judgment. Standard of Review
A summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To obtain a traditional summary judgment, a defendant must either negate at least one element of the plaintiff's theory of recovery or must plead and conclusively prove each element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). We review the evidence in the light most favorable to the party against whom summary judgment was rendered. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). We credit evidence that favors the nonmovant if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The movant must establish that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Applicable Law
The Overdorfs moved for summary judgment on the ground that Calhoun was a trespasser on the premises at Southern Stables and on the Rhino. Therefore, they maintain the only duty they owed Calhoun was not to injure her willfully, wantonly, or through gross negligence. See Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).
A negligence claim consists of three essential elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Gross negligence includes two elements:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, andTransp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).
(2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
The duty owed by a premise owner or occupier is determined by the status of the complaining party at the time and place of injury. Graham v. Atl. Richfield Co., 848 S.W.2d 747, 751 (Tex. App.-Corpus Christi 1993, writ denied). The question then is whether the complaining party was an invitee, licensee, or trespasser. Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex. Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.).
An invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. Tex. Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex. Civ. App.-Tyler 1964), writ ref'd n.r.e. per curiam, 393 S.W.2d 821 (Tex. 1965). "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 [no more than] a mere licensee." Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 602 (Tex. 1954). A person may be an invitee as to certain parts of the premises but not as to others. Id. "The owner or occupant may be held liable only where it appears that the victim sustained the injury while using a part of the premises which was designed for his accommodation or use. . . . A recovery is not sustainable where the evidence leads to the conclusion that 'it could not have been reasonably anticipated' [by the owner or occupier] that he would attempt to go to the place where the injury occurred." Id.
"A licensee is a person whose entrance upon or use of the premises of another is permitted by the owner under such circumstances that he is not a trespasser but is without any express or implied invitation." Rowland, 620 S.W.2d at 933. He is on the premises by sufferance and not by virtue of any business or contractual relations with, or any enticement, allurement, or inducement to enter being held out to him by the owner or occupant, but merely in his own interest or for his own purposes, benefits, convenience or pleasure. Id.
"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, pleasure, 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, 91 S.W.2d 302, 306 (1936) (quoting 45 C.J. 740).
When an invitee or licensee exceeds the limits of the authority provided by the invitation or license, she becomes a trespasser. Brown v. Dellinger, 355 S.W.2d 742, 746 (Tex. Civ. App.-Texarkana 1962, writ ref'd n.r.e.). The test to determine whether a person retains his status as an invitee at the time and place of injury is whether the owner reasonably should have foreseen the presence of someone such as the plaintiff at that particular place on the premises. Amoco Chems. Corp. v. Sutton, 551 S.W.2d 459, 462 (Tex. Civ. App.-Eastland 1977, writ ref'd n.r.e.); see also Triangle Motors of Dallas v. Richmond, 258 S.W.2d 60, 62 (Tex. 1953). Foreseeability is not determined by hindsight, but by what the defendant knew or should have known when the accident occurred. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 757 (Tex. 1998); Dyess v. Harris, 321 S.W.3d 9, 15 (Tex. App.-Houston 1st Dist.] 2009, pet. denied). A "foreseeability analysis does not consider what simply might occur. . . ." Dyess, 321 S.W.3d at 15.
The traditional status categories of invitee, licensee, and trespasser apply to personal property as well as to real property. Williams v. Bill's Custom Fit, Inc., 821 S.W.2d 432, 433 (Tex. App.-Waco 1991, no writ); Brown, 355 S.W.2d at 745.
If Calhoun was an invitee, the Overdorfs had the duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defect or give adequate warning. See Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972). If she was a licensee, the Overdorfs had the duty not to injure her willfully, wantonly, or through gross negligence, or by their active negligence. See Gonzalez v. Broussard, 274 S.W.2d 737, 739 (Tex. Civ. App.-San Antonio 1954, writ ref'd n.r.e.). If the licensor has knowledge of a dangerous condition, and the licensee does not, the licensor has the duty to warn the licensee or make the condition reasonably safe. Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561, 562-63 (Tex. 1976).
If Calhoun was a trespasser, the Overdorfs only owed her the duty not to injure her willfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding, 273 S.W.2d at 603. The owner has no affirmative duty to keep the premises safe for trespassers. Tex. Cities Gas Co. v. Dickens, 168 S.W.2d 208, 210 (Tex. 1943); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.-Waco 1995, no writ). Trespassers must therefore take those premises as they find them. Tex. Cities Gas, 168 S.W.2d at 210; Peerenboom, 910 S.W.2d at 163. Summary Judgment on Negligence Claim
Calhoun contends that she was an invitee at Southern Stables. If Calhoun was an invitee, the Overdorfs had the duty to keep the premises in a reasonably safe condition, inspect the premises to discover any latent defects, and make safe any defect or give adequate warning. See Adam Dante Corp., 483 S.W.2d at 455. Therefore, Calhoun insists, the Overdorfs owed her the duty to warn her of the Rhino's dangerous defect.
Calhoun argues that she was an invitee because she was invited onto the premises by Benjamin Boyle, the bride's brother and a member of the wedding party. However, the evidence shows that "after the reception had died down," Benjamin Boyle went to the Wild Horse Saloon where he met Julie Williams and invited her to Southern Stables. Boyle did not invite Calhoun. In fact, the evidence shows Williams told Calhoun about the party as they left the saloon just after the 1:00 a.m. closing time. In her deposition, Calhoun stated that she did not know who invited Julie Williams, but she assumed that Williams was told about the party by telephone or text message.
Calhoun also argues that even if Boyle initially invited Williams only, he was aware that Calhoun was with Williams and voluntarily admitted her to the reception. According to Calhoun, that is sufficient to make her an invitee. Calhoun contends that she was also an invitee as to the Rhino, because she was invited to ride in it by Matt Cargill who was a member of the wedding party and therefore, an invitee.
The premises were not open to the general public but only to those guests the host invited to the function together with those who might be expected to accompany them. But the Overdorfs made no effort to limit admission to the wedding and reception. According to Calhoun's argument, they insist, "anyone attending the event is an invitee, so long as he or she was invited by an invitee."
Calhoun argues she was an invitee because she was invited by an invitee. It follows from Calhoun's argument that an invitation to a function would convey to the invited guests unlimited authority to confer invitee status on any others they chose to invite. The newly invited, in their turn, would be empowered to bestow the same status on those they might ask to attend, imposing on the landowner the highest level of duty. Of course, Texas law does not recognize such a right of invitee succession. The burden on property owners would be unduly burdensome if not intolerable.
We have found no Texas case holding that an invitee may confer invitee status on another merely by invitation. The wedding and the reception were over by the time Calhoun arrived at Southern Stables between 1:15 and 1:20 a.m. She did not accompany an invitee to a function for which the premises were rented. She was not paying a social or business call on a guest there.
Under Texas law, an invitee is one who enters upon another's property in response to an express or implied invitation from the owner or occupier for their mutual benefit. Tex. Power & Light, 385 S.W.2d at 885. In the absence of some relation which is beneficial to both, or to the owner, no invitation can be implied. Mendez v. Knights of Columbus Hall, 431 S.W.2d 29, 32 (Tex. Civ. App.-San Antonio 1968, no writ). In this case, there is absolutely no evidence of any relationship between Calhoun and the Overdorfs that was of mutual benefit or beneficial to the Overdorfs. There was no potential benefit to the Overdorfs from Calhoun's presence on their property. The record shows conclusively that she was there solely for her own convenience and pleasure.
Calhoun argues that, even if she was not an invitee, she was a licensee, because after her arrival, she was allowed to remain. Therefore, she insists that the Overdorfs had the duty to warn her of the rollover risk of the Rhino, a dangerous condition of which they had knowledge. See e.g., Rowland, 620 S.W.2d at 933. However, when she arrived at Southern Stables, those with the authority to expressly or tacitly grant such permission were unaware of her presence. They were asleep or had left after the reception. Calhoun was not a licensee.
Without an invitation to Southern Stables, without even implied permission, and without any other reason for being there but for her own pleasure, Calhoun was a mere trespasser. See Texas-Louisiana Power Co., 91 S.W.2d at 306. Even her honest belief that she was permitted to be at Southern Stables would not alter her status as a trespasser. See Williams, 821 S.W.2d at 435. The Overdorfs owed her only the duty not to injure her willfully, wantonly, or through gross negligence. See Rowland, 620 S.W.2d at 933.
Moreover, even if we assume Calhoun had permission to be at Southern Stables, the evidence conclusively shows that she was a trespasser as to the Rhino. A person can enter property as an invitee on one part of the property and become a trespasser if he makes an unforeseen entry on another part of the property. Burton Constr. & Shipbuilding Co., 273 S.W.2d at 602; Williams, 821 S.W.2d at 435. The invitation to the guests at Southern Stables that night did not extend to the use of the motorized vehicles on the farm. Matt Cargill, one of the guests invited to the wedding and reception, asked Calhoun if she wanted to ride in the Rhino with him. Calhoun insists Cargill's invitation to ride in the Rhino gave her invitee status as to that vehicle. However, Cargill's invitation from the host did not extend to the Rhino and other vehicles on the farm, and Cargill became a trespasser when he got in the Rhino. He asked no one if he could use the Rhino, and no one gave him permission to drive it. He acknowledged that he would have asked permission if he had known the person who owned it.
In Texas & New Orleans Railway Co. v. Daft, although the plaintiff had permission to cross the railway company's tracks, he became a trespasser on those tracks when he decided to sleep on them. Tex. & New Orleans Ry. Co. v. Daft, 120 S.W.2d 481, 484 (Tex. Civ. App.-El Paso 1938, no writ). In Brown v. Dellinger, two boys who had previously been allowed to play in the neighbor's garage became trespassers when they started a fire in a grill they found in the garage. Brown, 355 S.W.2d at 746. In Burton Construction and Shipbuilding, a former employee who had permission to enter the business to collect his last paycheck became a trespasser when he left the office area and went looking for his former boss. Burton Constr. & Shipbuilding, 273 S.W.2d at 603. Similarly, in Hopkins v. Texas Power & Light Co., a man hired to paint a store in a shopping mall became a trespasser when he left the store to search for the source of power so that he could continue painting. Hopkins v. Tex. Power & Light Co., 514 S.W.2d 143, 147-48 (Tex. Civ. App.-Dallas 1974, no writ.)
Cargill had no authority to use the Rhino or invite others to use it. He was a trespasser on the Rhino. Calhoun cannot claim a higher status than Cargill.
Calhoun argues that because alcoholic beverages were served to the guests, many of them in their twenties, the Overdorfs reasonably should have anticipated that the guests would use the Rhino. Calhoun insists that parking the Rhino in the driveway with the keys in the cup holder implied permission to drive it.
Dave Overdorf parked the Rhino in order to keep the guests from driving into a mud hole in the drive. The contract with the bride's mother forbade the use of motor vehicles. During the time the Overdorfs had operated Southern Stables, they had rented the facility for similar events attended by people in their twenties and at which alcoholic beverages were served. On several occasions, Dave Overdorf had parked the Rhino in the same place. Yet according to Dave Overdorf's uncontradicted testimony, before this incident, the guests at Southern Stables had never used the Rhino.
Foreseeability is not determined by hindsight. Timberwalk Apartments, 972 S.W.2d at 757; Dyess, 321 S.W.3d at 15. Foreseeability is not determined by what simply might occur, but what the defendant knew or reasonably should have known at the time of the incident. Timberwalk Apartments, 972 S.W.2d at 757; Dyess, 321 S.W.3d at 15. In Dyess, even the defendants' later acknowledgement of unwise choices did not raise a material fact issue regarding what they knew or should have known before the incident. Dyess, 321 S.W.3d at 15. In the absence of any prior use or attempted use of the Rhino by Southern Stables guests, the use of the Rhino by Cargill and Calhoun was not foreseeable.
Calhoun was a trespasser at Southern Stables and on the Rhino. The Overdorfs owed her only a duty not to injure her willfully, wantonly, or through gross negligence. The trial court did not err in rendering summary judgment against her on her negligence claim. The portion of Calhoun's sole issue pertaining to her ordinary negligence claim against the Overdorfs is overruled. Summary Judgment on Gross Negligence Claim
Calhoun did not plead gross negligence in her original petition or her first amended original petition. However, after the Overdorfs filed their motion for summary judgment, Calhoun filed her second original petition alleging the Overdorfs were grossly negligent "in failing to correct a known rollover hazard on a Yamaha Rhino and leaving it outside their premises provided for an overnight wedding reception without properly securing the same. . . ." Instead of filing a new motion for summary judgment addressing Calhoun's gross negligence allegations, the Overdorfs sought to attack them in their reply to Calhoun's response to their motion for summary judgment. A reply is not a motion for summary judgment. Reliance Ins. Co.v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). A movant is not entitled to use its reply to amend its motion for summary judgment or to raise new and independent summary judgment grounds. Id.; see also Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.-San Antonio 2010, pet. denied). The trial court erred in rendering summary judgment against Calhoun on her claim of gross negligence. The portion of Calhoun's sole issue pertaining to her gross negligence claim against the Overdorfs is sustained.
We have overruled Calhoun's sole issue in part and sustained it in part. Accordingly, we affirm that part of the trial court's order granting the Overdorfs summary judgment against Calhoun on her ordinary negligence claims. We reverse that part of the trial court's order granting summary judgment against Calhoun on her claim of gross negligence and that claim is remanded to the trial court for further proceedings.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.