Employer found not liable in murder of employee in course of robbery at place of employment Barton v. Whataburger, Inc. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Bland) (workplace safety, murder not forseeable, no employer liability) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Alcala and Bland 01-06-01121-CV Rose Barton, Individually and as Personal Representative of the Estate of Christopher Martin Dean v. Whataburger, Inc. Appeal from 157th District Court of Harris County Trial Court Judge: Hon. Ronald [Randall] L. Wilson Court of Appeals holds that the trial court properly granted summary judgment because the diabolic conduct of others—men who committed aggravated robbery and murder—was a superseding cause of Dean’s death that was not reasonably foreseeable to Whataburger. The Court therefore affirm the judgment of the trial court. We conclude Pouncy-Pittman failed to bring forth even a scintilla of evidence raising a genuine issue of material fact on her challenged negligence claim against Pappadeaux. For example, she did not present any evidence demonstrating that the crime was or should have been foreseeable to Pappadeaux under Timberwalk. None of documents she submitted contain information regarding crime statistics for the surrounding area, nor do they discuss “specific previous crimes on or near the premises.” Nor was Pouncy- Pittman’s conclusory allegation that the area was “widely known” to be dangerous and that “numerous violent crimes” had occurred in the general area sufficient to survive a no-evidence summary judgment motion. Conclusory or speculative opinion testimony does not tend to make the existence of a material fact “more or less probable” and is neither relevant nor competent. Coastal Transp. Co. v. Crown Cent. Petroleum. Corp., 136 S.W.3d 227, 232 (Tex. 2004) (quoting Tex. R. Evid. 401). A trial court presented with purported evidence that is merely conclusory or speculative on its face need not go beyond the face of the record to test its reliability. Coastal Transp. Co., 136 S.W.3d at 233. Accordingly, Dr. Moore’s opinion that the murder of Pittman was not foreseeable to Pappadeaux—as supported by the facts he recited from the unchallenged police reports, news reports and crime statistics— was uncontroverted. We recognize that, because the question of duty is a question of law for the court, an expert cannot properly opine regarding the existence of a duty. See, e.g., Drennan v. Cmty. Health Inv. Corp., 905 S.W.2d 811, 824 (Tex. App.—Amarillo 1995, writ denied). Further, in premises liability cases, expert testimony alone is insufficient to raise a fact issue on foreseeability. Allright San Antonio Parking Inc. v. Kendrick, 981 S.W.2d 250, 255 (Tex. App.—San Antonio 1998, no pet.). However, even when faced with a no-evidence summary judgment motion against her, Pouncy-Pittman failed to produce more than a scintilla of evidence showing that Pappadeaux had a duty under Timberwalk to Pittman and that it breached that duty. Pappadeaux, on the other hand, produced an affidavit that contained unchallenged factual assertions supporting a conclusion that it did not owe a duty to Pittman. Accordingly, the trial court properly entered final summary judgment in Pappadeaux’s favor. We overrule Pouncy-Pittman’s first point of error. Trevino v. NVG North Village Green I Association, Inc. (Tex.App.- Houston [14th Dist.] Sep. 25, 2008) (Seymore) (premises liability, elevator malfunction) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-07-00240-CV Oralia Trevino v. NVG North Village Green I Association, Inc. Appeal from 190th District Court of Harris County Trial Court Judge: Jennifer Elrod Walker Pouncy Pittman v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] July 31, 2008)(Hanks) (shooting in front of restaurant, not forseeable, no liability, motion for continuance MFC, admission of evidence) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Nuchia, Alcala and Hanks 01-07-00575-CV Leah Pouncy Pittman, Individually and on behalf of the heirs at law of the Estate of Delearette Montrail Pittman v. Pappas Restaurants, Inc., d/b/a Pappadeaux Seafood Kitchen Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Jennifer Walker Elrod Astolfo v. Hobby Lobby Stores, Inc. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (premises liability, store, falling objects) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Keyes and Alcala) 01-06-00486-CV Patricia Astolfo and Harry Astolfo v. Hobby Lobby Stores, Inc. Appeal from 55th District Court of Harris County Trial Court Judge: Hon. Jeffrey Brown Attorneys: Nuru Lateef Witherspoon, David L. Pacione Grayson v. Anselmo (Tex.App. - Houston [14th Dist.] Mar. 11 2008) (Brown) (premises liability, slip and fall, summary judgment for defendant affirmed) AFFIRMED: Opinion by Justice Brown 14-06-01073-CV Ronald Grayson v. Joseph Anselmo, Individually and D/B/A Joe's Barber Shop Appeal from County Civil Court at Law No 1 of Harris County Trial court judge: Hon. R. Jack Cagle Khan v. Hasan (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Higley) (premises liability, slip and fall claim AFFIRM TC JUDGMENT: Opinion by Justice Higley 01-07-00082-CV Shahnaz Khan v. Ferhat M. Hasan and Manzoor Hasan Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Jennifer Elrod Lofton v. Marmaxx Operating Corp. (Tex.app.- Houston [1st Dist.] Feb. 28, 2008)(Hanks) (premises liability) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Nuchia, Hanks and Higley 01-06-01109-CV Debra Lofton v. Marmaxx Operating Corp., Individually and d/b/a T. J. Maxx Appeal from 113th District Court of Harris County (Judge Patricia Hancock) Vanderbeek v. San Jacinto Methodist Hospital (Tex.App- Houston [14th Dist.] Jan 31, 2008)(Frost) (workplace injury, premises owner liability) AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Frost and Guzman 14-06-00783-CV Gary Vanderbeek v. San Jacinto Methodist Hospital Appeal from 125th District Court of Harris County (Judge John A Coselli) Garcia v. Packaged Ice, Inc. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Taft)(PI slip and fall) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Hanks and Higley 01-06-00379-CV Elsa Garcia v. Packaged Ice, Inc., a/k/a Reddy Ice and Curtis Dean Bell, Individually and d/b/a Curtiss Dean Bell Distributing Company Appeal from 164th District Court of Harris County (Judge Martha Hill Jamison) Clark v. Lowe's Home Centers, Inc. (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Keyes)(PI, store premises liability) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Nuchia, Jennings and Keyes 01-06-00689-CV Billy Clark v. Lowe's Home Centers, Inc., d/b/a Lowe's of Tomball, TX, Store #1052 and Union Corrugating Company Appeal from 234th District Court of Harris County (Hon. Reece Rondon) Kipp v. KBR (Tex.App.- Houston ]1st Dist.] Nov. 8, 2007)(Radack)(premises liability, NE-MSJ) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Bland 01-06-00906-CV Steven Kipp and Karen Kipp v. Kellogg Brown & Root Services, Inc. f/k/a Management Logistics, Inc., BRSP, Dyncorp Technical Services, LLC and Computer Science Corporation Appeal from 151st District Court of Harris County (Hon. Caroline Baker) Garcia v. Packaged Ice, Inc. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Taft)(PI slip and fall) AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Hanks and Higley 01-06-00379-CV Elsa Garcia v. Packaged Ice, Inc., a/k/a Reddy Ice and Curtis Dean Bell, Individually and d/b/a Curtiss Dean Bell Distributing Company Appeal from 164th District Court of Harris County (Judge Martha Hill Jamison) Wilson v. Braeburn Presbyterian Church (Tex.App.- Houston [14th Dist.] Nov. 27, 2007)(Opinion by Senior Justice Edelman, sitting by assignment) (premises liability, slip and fall) REVERSED AND REMANDED: Opinion by Justice Edelman Before Justices Brock Yates, Edelman and Seymore 14-06-00215-CV Johnnie Wilson v. Braeburn Presbyterian Church Appeal from 80th District Court of Harris County (Hon. Kent Sullivan) Urista v. Bed, Bath & Beyond (Tex.App.- Houston [1st Dist.] Oct. 18. 2007)(Alcala)(opinion on rehearing post- remand from Texas Supreme Court) (personal injury, PI, premises liability, jury issues) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Taft, Jennings and Alcala 01-02-00150-CV Urista, Rafael v. Bed, Bath & Beyond, Inc. Appeal from 234th District Court of Harris County (Hon. Reece Rondon) Fleming v. Astroworld (Tex.App.- Houston [1st Dist.] Aug. 30, 2007)(Wilson)(premises liability suit) AFFIRM TC JUDGMENT: Opinion by Judge Wilson Before Judge Wilson, Justices Alcala and Hanks 01-06-00094-CV Sabrina Fleming a/n/f of Gregory Lawson and Gregory Lawson v. Astroworld, GP LLC Appeal from 152nd District Court of Harris County (Judge Kenneth P. Wise) Bergman v. Minnie Martin Daugherty (Tex.App.- Houston [14th Dist.] Jul. 31, 2007)(Yates)(premises liability, theft) Opinion by Justice Brock Yates Before Justices Brock Yates, Anderson and Hudson 14-05-01268-CV Pamela K. Bergman v. Minnie Martin Daugherty Appeal from 280th District Court of Harris County (Judge Tony Lindsay) - Affirmed Harris County v. Gerber (Tex.App.- Houston [14th Dist.] Jul. 10, 2007)(Hudson)(TTCA, permises defect) REVERSED AND DISMISSED: Opinion by Justice Hudson Before Chief Justice Hedges, Justices Hudson and Guzman 14-06-01096-CV Harris County v. Hollie Gerber Appeal from 165th District Court of Harris County (Judge Elizabeth Ray) Carpenter v. The Kroger Co. (Tex.App.- Houston [1st Dist.] Jun 14, 2007)(Nuchia)(op. on motion for rehearing)(premises liability) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchia Before Justices Nuchia, Keyes and Higley 01-06-00087-CV Suzanne S. Carpenter v. The Kroger Company and/or The Kroger Co. Appeal from 113th District Court of Harris County (Judge Patricia Hancock) Thomas v. CNC Investments, L.L.P (Tex.App.- Houston [1st Dist.] May 31, 2007)(Taft) [premises liability, assault, criminal] AFFIRM TC JUDGMENT: Opinion by Justice Taft Before Justices Taft, Jennings and Alcala 01-05-00838-CV Craig Thomas, Karen Thomas, Kaitlin Thomas and Caroline Thomas v. CNC Investments, L. L.P.--Appeal from 190th District Court of Harris County (Judge Jennifer Elrod) Mathis v. Restoration Builders, Inc. (Tex.App.- Houston [14th Dist.] May 22, 2007)(Fowler)(negligence premises liability, negligence, res ipsa loquitur, causation, NE-MSJ] REVERSED AND REMANDED: Opinion by Justice Fowler Before Justices Fowler, Edelman and Frost 14-05-00996-CV George Mathis, Jr. v. Restoration Builders, Inc Appeal from 215th District Court of Harris County (Judge Levi James Benton) Justice Edelman dissented in Mathis v. Restoration Builders, Inc. Carpenter v. The Kroger Co. (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(superseded opinion by Nuchia) [premises liability, summary judgment, spoliation] REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Nuchia Before Justices Nuchia, Keyes and Higley 01-06-00087-CV Suzanne S. Carpenter v. The Kroger Company and/or The Kroger Co. Appeal from 113th District Court of Harris County (Hon. Patricia Hancock) First Court of Appeals Dismisses Personal Injury Suit Against UH on Sovereign Immunity Grounds University of Houston v. De Luna (Tex.App. - Houston [1st. Dist.] Apr. 12, 2007)(Taft)(TTCA) [governmental entity, law, sovereign immunity, TTCA, premises liability, discretionary function exception, plea to the jurisdiction] VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Taft (Before Justices Taft, Alcala and Bland) 01-06-00448-CV University of Houston v. Yvonne Michelle De Luna Appeal from 127th District Court of Harris County (Judge Sherolyn Wood) Choice v. Gibbs (Tex.App.- Houston [14th Dist.] Apr. 12, 2007)(Frost)(substituted opinion on rehearing) [summary judgment reversed, fact issue, PI, contractor, homeowner negligence, premises liabilty] REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Fowler, Edelman and Frost 14-05-01068-CV Willie Choice v. Richard A. Gibbs and Mary C. Edwards Appeal from 127th District Court of Harris County (Judge Sharolyn P. Wood) Herrington v. Cote (Tex.App.- Houston [1st Dist.] Mar. 29, 2007)(Taft)(premises liability) |
| Slip & Fall and Premises Liability Cases from Houston Courts of Appeals Houston Opinions |