Texas Judiciary Online - HTML Opinion

Second, although this = may be an=20 issue of first impression in this court, at least seven opinions = from five=20 other Texas appeals courts have addressed the duty standard = applicable to=20 sports injuries, and all seven applied or recognized the reckless = or=20 intentional conduct standard.^{^[7]} The=20 Texas Supreme Court denied review in five of the six of those = cases in=20 which a writ application was filed, and reversed on other grounds = in the=20 sixth.^{^[8]} =20 More importantly, however, in two of the five cases in which = review was=20 denied, three justices dissented specifically on the ground that = the=20 inherent risk standard should be adopted, but a majority of the = Court=20 nevertheless declined to do so. See Phi Delta Theta Co. = v.=20 Moore, 10 S.W.3d 658, 658-62 (Tex. 1999) (Enoch, J., = dissenting);=20 Davis v. Greer, 940 S.W.2d 582, 582-83 (Tex. 1996) = (Gonzalez, J.,=20 dissenting). In this case, by adopting a standard that the = Texas=20 Supreme Court has twice affirmatively declined to adopt, does the = Majority=20 Opinion presume to tacitly overrule those decisions or to just = extend the=20 Court another opportunity and invitation to finally Aget it = right?@

Third, contrary to = the=20 simplistic manner in which the Majority casts this issue, it = involves=20 important, wide-ranging, and competing policy considerations with = which=20 courts in Texas and elsewhere have had considerable difficulty, = not only=20 in selecting among the alternative standards, but, more = importantly, in=20 finding a uniform or coherent basis on which to apply any of = them.^{^[9]} Any=20 decision on whether to adopt a completely different liability = standard=20 than any other Texas appeals court has applied should be made by = the Texas=20 Supreme Court after the issue has been properly developed in the = lower=20 courts and adequately briefed and analyzed, none of which has = occurred in=20 this case.^{^[10]}

/s/ =20 Richard H. Edelman

Senior Justice

Judgment rendered and = Majority=20 and Dissenting Opinions filed September 27, 2007.

Panel consists of = Justices=20 Fowler, Frost, and Edelman.^* (Frost, = J.,=20 majority)

^{^[1]} =20 See, e.g., Haase v. Glazner, 62 S.W.3d 795, 800 = (Tex. 2001)=20 (reiterating that summary judgment cannot be affirmed on an = argument not=20 expressly presented in the motion for summary judgment); = Science=20 Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911-12 (Tex. 1997) = (holding that a traditional motion for summary judgment based on = the=20 no-duty ground of no exercise of control over the adjacent = premises did=20 not allow affirmance based on the no-duty ground of not having = creating=20 the dangerous condition); Sysco Food Servs., Inc. v. = Trapnell, 890=20 S.W.2d 796, 805 (Tex. 1994).

^{^[2]} =20 Although inconsistent positions can be asserted in the = alternative,=20 Registered Teams=3Ds motion contained no language = indicating any such=20 intent.

^{^[3]} =20 A true no-duty case is where, for example, a property owner = asserts that=20 it owes no legal duty of any kind to a plaintiff for an = injury=20 caused by a premise defect because the property owner retained no = right of=20 control over the property. See, e.g., Science = Spectrum, 941=20 S.W.3rd at 911B12. The Majority actually rules = that there=20 is no evidence of a breach of the inherent risk negligence = duty=20 that it acknowledges was owed, but attempts to label that ruling = as no=20 evidence of a duty.

^{^[4]} =20 Was Robin also required to raise a fact issue under each of the = other two=20 alternative liability standards identified in the Majority Opinion = in case=20 it might have chosen to adopt one of those = instead?

^{^[5]} =20 Court decisions should not be applied retroactively where, as is = likely=20 here: (1) the decision establishes a new principle of law by = either=20 overruling clear past precedent on which litigants may have relied = or by=20 deciding an issue of first impression whose resolution was not = clearly=20 foreshadowed; or (2) retroactive application could produce = substantial=20 inequitable results. See, e.g., Baker Hughes, Inc. v. = Keco R.=20 & D. Inc., 12 S.W.3d 1, 4-5 (Tex. 1999).

^{^[6]} =20 See, e.g., Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 = (Tex. 1998)=20 (reversing summary judgment, claiming that pleadings failed to = state a=20 cause of action by not alleging a legal duty owed by the = defendants,=20 because plaintiffs had not been put on notice that their pleadings = were=20 deficient and given an opportunity to amend); Peek v. Equip. = Serv. Co.=20 of San Antonio, 779 S.W.2d 802, 805 (Tex. 1989) (reiterating = that=20 unless the petition affirmatively demonstrates that no cause of = action=20 exists or that the plaintiff=3Ds recovery is barred, a trial court must = give a=20 plaintiff an opportunity to amend before granting a summary = judgment on=20 the plaintiff=3Ds failure to plead facts that state a = cause of=20 action).

^{^[7]} =20 See Southwest Key Program, Inc. v. Gil-Perez, 79 S.W.3d = 571, 575-76=20 (Tex. App.CCorpus Christi 2000), = rev=3Dd on other grounds, 81 S.W.3d 269, 274-75 (Tex. 2002); = Monk=20 v. Phillips, 983 S.W.2d 323, 324-26 (Tex. App.CFort Worth 1998, pet. denied); Moore = v. Phi=20 Delta Theta, 976 S.W.2d 738, 741-42 (Tex. App.CHouston [1^st Dist.] 1998, = pet. denied);=20 Greer v. Davis, 921 S.W.2d 325, 328-29 (Tex. = App.CCorpus Christi 1996, writ denied); = Allen v.=20 Donath, 875 S.W.2d 438, 440 (Tex. App.CWaco 1994, writ denied); Hathaway v. = Tascosa=20 Country Club, Inc., 846 S.W.2d 614, 616-17 (Tex. = App.CAmarillo 1993, no writ); Connell v. = Payne,=20 814 S.W.2d 486, 489 (Tex. App.CDallas 1991, writ denied). Because = Registered Teams did not seek summary judgment based on the=20 intentional-reckless duty standard, the summary judgment could not = have=20 been affirmed on the Chrismons=3D failure to present evidence to satisfy = that=20 standard.

^{^[8]} =20 See supra, note 7.

^{^[9]} =20 See, e.g., Matthew G. Cole, No Blood No Foul: The = Standard of=20 Care in Texas Owed by Participants to One Another in Athletic=20 Contests, 59 Baylor L. Rev. 435 (2007). Similarly, = although=20 aware of the inherent risk standard, the Legislature has seen fit = to=20 impose it in only one very limited context, that being injury or = damage=20 occurring in an equine activity or livestock show. = See Tex.=20 Civ. Prac. & Rem. Code Ann. ' 87.003 (Vernon 2005). Moreover, = although=20 former Justice Enoch has argued that the inherent risk doctrine is = somehow=20 distinct from the former implied assumption of the risk doctrine = that has,=20 with exceptions not applicable here, been subsumed into = comparative=20 responsibility, it is not apparent to me how the two are = conceptually=20 different. See Phi Delta Theta, 10 S.W.3d at 659-62 = (Enoch,=20 J., dissenting).

^{^[10]} =20 Even Justice Enoch=3Ds dissent recognizes that the policy = justifying a=20 heightened sports liability standard is to prevent tort liability = from=20 curtailing the competitive fervor with which sports should be=20 played. See Phi Delta Theta, 10 S.W.3d at = 660B61. However, contrary to the=20 Majority=3Ds treatment of Robin as a participant in = this=20 case, she was not a player, and her injury did not result from any = competitive activity by a player. A heightened standard is = thus no=20 more justified in this context than if Brown had inadvertently = jammed=20 Robin=3Ds hand in the dugout gate or dropped the = equipment=20 bag on her foot.

^* =20 Senior Richard H. Edelman sitting by=20 = assignment.