Texas Judiciary Online - HTML Opinion

^{^[1]} =20 While Brown hit grounders to the players on the field, Robin was a = short=20 distance away catching balls that were thrown = back.

^{^[2]} =20 See Tex. Civ. = Prac. &=20 Rem. Code Ann. '' 84.001B.008 (Vernon 2005).

^{^[3]} =20 The Chrismons refer to various objections they lodged against an = expert=20 affidavit attached to Brown=3Ds motion for summary judgment; however, = even=20 ignoring this affidavit, the evidence conclusively proves=20 Brown=3Ds defense of immunity. Therefore, = we need=20 not address the objections to this affidavit.

^{^[4]} =20 In no part of any summary-judgment response does Lonnie describe = or refer=20 to the transcript of his deposition. Registered Teams, = however,=20 attached excerpts from the transcript of Lonnie=3Ds deposition to its reply to = Lonnie=3Ds summary-judgment = response.

^{^[5]} =20 In their fifth issue, the Chrismons challenge the summary judgment = granted=20 in favor of Registered Teams on the ground that the Act allows = charitable=20 organizations to be held vicariously liable for the acts and = omissions of=20 volunteers who are themselves immune from liability. = See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' 84.004(e) (Vernon 2005) (AThe provisions of this section apply = only to the=20 liability of volunteers and do not apply to the liability of the=20 organization for acts or omissions of volunteers.@); Howle v. Camp Amon = Carter, 470=20 S.W.2d 629, 630 (Tex. 1971) (abolishing common-law doctrine of = charitable=20 immunity and holding that a charitable enterprise is subject to = vicarious=20 liability under the rule of respondeat superior that is applicable = to=20 business organizations operated for profit). However, because = Registered=20 Teams=3Ds motions for summary judgment did not = assert=20 immunity, this issue lacks merit, and we overrule = it.

^{^[6]} =20 We need not and do not address the duties owed by a nonparticipant = in a=20 sport to a participant.

^{^[7]} =20 Our dissenting colleague cites three additional cases. = See=20 post at p. 4, n.7. However, two of these cases are not on = point=20 because they did not raise the issue of the duty owed by one = sports=20 participant to another sports participant. See Southwest = Key=20 Program, Inc. v. Gil-Perez, 79 S.W.3d 571, 575-76 (Tex.=20 App.CCorpus Christi 2000), = rev=3Dd on other grounds, 81 S.W.3d 269, 274B75 (Tex. 2002); Moore v. Phi = Delta=20 Theta, 976 S.W.2d 738, 741B42 (Tex. App.CHouston [1st Dist.] 1998, writ = denied). The=20 third case is also not on point because the appellants in that = case did=20 not assign error as to the trial court=3Ds dismissal of their negligence = claim =20 Greer v. Davis, 921 S.W.2d 325, 327 (Tex. App.CCorpus Christi 1996, writ denied). =

^{^[8]} =20 Our dissenting colleague suggests that adoption of this rule by = four=20 sister courts of appeals weighs against this court=3Ds adoption of the inherent-risk = doctrine. =20 See post at p. 4. Though we have given due = consideration to=20 the decisions of these sister courts, we are not bound to follow = them and=20 respectfully decline to do so.

^{^[9]} =20 Our dissenting colleague states that it is not apparent to him why = this=20 legal standard regarding one sports participant=3Ds duty to another sports participant is = different=20 from the implied-assumption-of-the-risk doctrine, which the Texas = Supreme=20 Court has abrogated. See Farley v. M M Cattle Co., = 529 S.W.2d=20 751, 758 (Tex.1975); post at p. 5, n.9. However, we = agree=20 with Justice Hecht and former Justice Enoch that there is a = meaningful=20 distinction between implied assumption of the riskCan affirmative defense that applies even = if the=20 defendant is negligentCand the inherent-risk doctrine, which is = not an=20 affirmative defense but a legal standard for determining whether a = sports=20 participant owes a duty at all. See Phi Delta = Theta=20 Co., 10 S.W.3d at 659B63; see also Geiersbach v. = Frieje, 807=20 N.E.2d 114, 116B20.

^{^[10]} =20 On appeal, Registered Teams has argued that this court can affirm = the=20 no-duty ground based on either the inherent-risk doctrine or the=20 no-negligence-duty rule (the second approach stated above).=20

^{^[11]} =20 Our dissenting colleague asserts that this court is tacitly = overruling=20 prior decisions by the Texas Supreme Court in which that higher = authority=20 Aaffirmatively declined to = adopt@ the inherent-risk doctrine. = See post=20 at p. 4. The decisions to which our colleague refers are = decisions=20 to deny review in cases in which other courts of appeals addressed = tort-liability standards in the sports-injury context. = However, by=20 declining to exercise discretionary review over decisions of our = sister=20 courts of appeals, the Texas Supreme Court indicated that it = was=20 not satisfied that the opinions in those cases declared the = law=20 correctly in all respects but was of the opinion that the = application for=20 writ of error (or petition for review) presented no error of law = which=20 required reversal or which was of such importance to Texas = jurisprudence=20 as to require correction. See In re T.L.C., 948 S.W.2d 41, = 45 n.3.=20 (Tex. App.CHouston [14th = Dist.] 1997, no=20 pet.); see also Tex. R.=20 App. P. 56.1 (b)(1). The high court=3Ds denial of review = does not=20 give any indication as to its view regarding the merits of the = issues=20 decided by the courts of appeals. See Loram Maintenance = of Way,=20 Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006); Matthews = Const.=20 Co., Inc. v. Rosen, 796 S.W.2d 692, 694 n.2 (Tex. 1990). = Therefore, these denials of review do not constitute decisions in = which=20 the Texas Supreme = Court has=20 declined to adopt the inherent-risk doctrine. = See = Ianni, 210 S.W.3d at = 596. =20 Although various justices on that court have advocated granting = review to=20 adopt the inherent-risk approach to tort liability for = sports-injury=20 claims, the high court has never addressed this issue, as the = court itself=20 recently acknowledged. See Southwest Key Program, = Inc., 81=20 S.W.3d at 271B72 (noting Texas = Supreme=20 Court has not addressed this issue but stating that court did not = need to=20 address it to resolve the case at hand); Phi Delta Theta = Co.,=20 10 S.W.3d at 658B63 (Tex. 1999) = (Enoch, J.,=20 joined by Hecht, J., dissenting to denial of petition after court=20 determined it was improvidently granted) (stating that court = should grant=20 review to address important issue not yet addressed by the Texas = Supreme=20 Court and to adopt the inherent-risk doctrine); = Davis, 940=20 S.W.2d at 582B83 (Tex. 1996) = (Gonzalez, J.,=20 dissenting from denial of application for writ of error) (stating = that=20 Texas Supreme Court should grant review to address this issue and = to adopt=20 the inherent-risk approach). Because the Texas Supreme Court has not = yet=20 adopted a rule in this area, no ruling from this court could = conflict with=20 any of that higher court=3Ds precedents. Therefore, this = court can and=20 should address this important issue regarding Texas common-law = tort=20 liability, as have four other Texas intermediate courts of = appeals. =20 See Monk, 983 S.W.2d at 324B26; Allen, 875 S.W.2d at 440;=20 Hathaway, 846 S.W.2d at 616B17; Connell, 814 S.W.2d at=20 489.

^{^[12]} &= nbsp; =20 On appeal, Robin states that Registered Teams did not assert in = its May=20 23, 2005 motion that it owed no legal duty to Robin and that = Registered=20 Teams did not assert any no-evidence summary-judgment grounds = against her=20 claims. However, in that motion, Registered Teams asserted = that=20 APlaintiffs have no evidence raising a = genuine=20 issue of material fact of any of the following essential elements = . . .=20 legal duty owed by one person to another.@ Registered Teams asserted a = no-evidence=20 ground as to duty. See Patino v. Complete Tire, Inc., = 158=20 S.W.3d 655, 659B60 (Tex. App.CDallas 2005, pet. denied). Indeed, = this=20 exact language is contained in Registered Teams=3Ds June 7, 2005 motion for summary = judgment, which=20 Robin concedes is a no-evidence motion. Both in its motion = and on=20 appeal, Registered Teams has asserted that its alleged agent Brown = owed no=20 negligence duty to Robin. Applying the inherent-risk = doctrine, we=20 conclude the summary-judgment evidence does not show that Brown = owed a=20 negligence duty. Therefore, there is a question in this case = as to=20 the existence of a negligence duty. See post at pp.=20 2B3 (stating that this court and = Registered Teams=20 agree there is a duty and the only real question is whether there = is a=20 fact issue as to breach of duty).

Our dissenting colleague also concludes = that this=20 court cannot adopt the inherent-risk doctrine because no party=20 specifically asserted this doctrine in the trial court and because = there=20 is no summary-judgment ground before this court that raises this=20 issue. We disagree.

Registered Teams asserted a no-evidence = ground in=20 which it attacked the essential element of duty. Whether a = duty=20 exists is a question of law for the court to decide from the facts = surrounding the occurrence in question. See Thapar v.=20 Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). In its motion, = Registered Teams asserted that there is no evidence of this = essential=20 element of Robin=3Ds claims. Under Texas Rule of = Civil=20 Procedure 166a(i), the burden shifted to Robin to point to and = present=20 evidence that raised a genuine issue as to whether there is a = legal=20 duty. See Tex. R.=20 Civ. P. 166a(i). Therefore, this court has reviewed = the trial=20 court=3Ds summary-judgment ruling as to the=20 vicarious-liability claims based on Registered Teams=3Ds no-evidence-of-duty ground. =

Registered Teams was not required to = outline in=20 its motion the legal analysis under which it claims no duty arises = under=20 the facts and circumstances surrounding this occurrence. = See=20 Tex. R. Civ. P. = 166a(i)=20 & cmt.; Pico v. Capriccio Italian Restaurant, Inc., 209 = S.W.3d=20 902, 912 (Tex. App.CHouston [14th Dist.] 2006, no pet.) = (affirming=20 summary judgment granting motion which asserted simple ground that = there=20 was no evidence of duty, even though analysis of this ground = required=20 consideration of alter ego and corporate liability issues); = Mathis v.=20 RKL Design/Build, 189 S.W.3d 839, 844B45 (Tex. App.CHouston [1st Dist.] 2006, no pet.) = (affirming=20 summary judgment granting motion which asserted simple ground that = there=20 was no evidence of duty, even though analysis of this ground = required=20 consideration of various premises-liability issues); Patino v. = Complete=20 Tire, Inc., 158 S.W.3d 655, 659B60 (Tex. App.CDallas 2005, pet. denied) (affirming = summary=20 judgment granting motion which asserted simple ground that there = was no=20 evidence of duty, even though analysis of this ground required=20 consideration of various legal principles regarding an=20 employer=3Ds duties). This court has held = that an=20 appellant preserved a no-duty complaint by asserting in its motion = for=20 judgment notwithstanding the verdict that it owed no duty, even = though the=20 analysis of this no-duty complaint involved consideration of at = least=20 seven different issues. See Entex, A Division of = Noram=20 Energy v. Gonzalez, 94 S.W.3d 1, 4, 6B11 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). =

Our dissenting colleague cites cases = involving=20 traditional motions for summary judgment. See post p. = 2,=20 n.1. Appellate courts must affirm no-evidence motions for = summary=20 judgment based on the grounds stated therein. However, under = the=20 no-evidence summary-judgment rule, a ground that there is no = evidence of=20 legal duty is sufficient. See Tex. R. Civ. P. 166a(i) = &=20 cmt. Therefore, cases involving traditional motions for = summary=20 judgment are not on point. In addition, Science Spectrum, = Inc. v.=20 Martinez, does not conflict with this court=3Ds analysis. See 941 S.W.2d = 910,=20 911B12 (Tex. 1997). In that case, the = Texas=20 Supreme Court concluded that the one ground stated in the = traditional=20 motion C that the movant owed no duty to the = plaintiff=20 because it did not control the premises where the accident=20 occurredCwas insufficient to entitle the movant = to summary=20 judgment because the movant would have a duty if it created a = dangerous=20 condition even though it did not control the premises. = See=20 id. In the case at hand, the ground was simply that = there was no=20 evidence of a legal duty.

Our dissenting colleague states that (1) = Registered Teams sought a no-evidence summary judgment as to duty = based on=20 a legal standard that conflicts with the inherent-risk doctrine = and (2)=20 Registered Teams acknowledged in its motion that Brown owed a = negligence=20 duty to Robin. See post at p. 2. These = assertions are=20 incorrect. Registered Teams asserted that there is no = evidence of=20 duty. As discussed above, Registered Teams did not specify a = legal=20 standard for this no-evidence ground, and it was not required to = do=20 so. In the part of the motion quoted in the dissenting = opinion,=20 Registered Teams asserts there is no evidence of a breach of any=20 duty. See id. Parties are allowed to assert = alternative=20 summary-judgment grounds. See Canchola v. White, No.=20 14-03-00826-CV, 2004 WL 3008673, at *4 (Tex. App.CHouston [14th Dist.] Dec. 30, 2004, no=20 pet.). If there is no evidence showing duty, there cannot be = any=20 breach of duty. However, a no-evidence point as to the=20 breach-of-duty element presumes for the sake of argument that = there is a=20 duty. Under the inherent-risk doctrine, if, applying the = above=20 analysis, the=20 risk that resulted in Robin=3Ds injury is not = inherent in=20 the nature of the sport in question,=20 then Brown would owe Robin the ordinary = negligence duty=20 to which Registered Teams refers in the portion of the motion = quoted in=20 the dissenting opinion. See=20 post at p. 2. = Registered=20 Teams=3Ds reference to this = negligence duty in argument under its alternative ground attacking = breach=20 of duty is not an admission that Brown owed Robin such a = duty. =20 Registered Teams did not base its no-evidence ground attacking = duty on a=20 legal standard that = conflicts with=20 the inherent-risk doctrine.

In his dissenting opinion, our esteemed = colleague=20 argues that, because of the general nature of Registered = Teams=3Ds no-evidence ground, Robin was not on = notice as=20 to the legal standard to be used in the duty analysis. Given = that=20 the Texas Supreme Court has not determined which legal standard = applies in=20 this context, our dissenting colleague asks whether Robin was = supposed to=20 have presented summary-judgment evidence as to the duty analysis = under the=20 inherent-risk doctrine as well as the no-negligence-duty approach = adopted=20 by some of our sister courts. See post at p. = 3,=20 n.4. Under the no-negligence-duty, as a matter of law, a = sports=20 participant never owes another sports participant a negligence = duty. =20 Therefore, under that approach there would not be any evidence = Robin could=20 have presented. However, if there is uncertainty as to the = legal=20 standard for analyzing duty, the nonmovant should present evidence = addressing the various possible legal standards. See = Tex. R. Civ. P. 166a(i) = &=20 cmt.; Pico, 209 S.W.3d at 912; Mathis, 189 S.W.3d at = 844B45; Patino, 158 S.W.3d at = 659B60. Our dissenting colleague = indicates that=20 Robin had no notice that the inherent-risk doctrine might apply, = but at=20 the time the summary-judgment motion was served on Robin, the = Texas=20 Supreme Court had recently described the inherent-risk doctrine as = a=20 possible legal standard, and the high court noted that it had not = yet=20 decided which legal standard applies under Texas law. =20 See = Southwest=20 Key Program, Inc., 81 S.W.3d at=20 271B72. =

In sum, for the reasons stated above, it = is=20 appropriate for this court to address the inherent-risk doctrine = based on=20 the no-evidence ground raised by Registered = Teams.

^{^[13]} =20 This court is not basing its decision on a summary-judgment ground = raised=20 for the first time on appeal or on a conclusion that Robin did not = state a=20 cause of action in her pleadings or on any basis that should = properly be=20 raised by special exceptions. See post at p.=20 3.

^{^[14]} =20 Likewise, the summary-judgment evidence does not raise a genuine = issue of=20 material fact as to Brown=3Ds alleged breach of duty by allegedly = knowingly or=20 recklessly assaulting Robin.

^{^[15]} =20 Our dissenting colleague states that, despite being aware of the=20 inherent-risk doctrine, the Texas Legislature has imposed it by = statute=20 only in the context of liability arising from equine activities or = livestock shows. See post at p. 5, n. 9; = see also=20 Tex. Civ. Prac. = & Rem.=20 Code Ann. ' 87.001, et seq. (Vernon 2005) = (stating=20 that, with some exceptions, persons are not liable for property = damage or=20 personal injury to participants in an equine activity or livestock = show if=20 it results from dangers or conditions that are an inherent risk of = an=20 equine activity or livestock show). However, this statute = does not=20 state that the inherent-risk doctrine applies only in this = context. =20 The Texas Legislature=3Ds adoption of the inherent-risk doctrine = in one=20 context does not prevent this court from adopting the = inherent-risk=20 doctrine in another context.

^{^[16]} =20 Although in these two issues the Chrismons focus on the = breach-of-duty=20 element and Registered Teams=3Ds assertion that the incident in = question was=20 Aan accident,@ we consider a challenge to the trial=20 court=3Ds no-evidence summary judgment to be a = subsidiary=20 question that is fairly included in these two issues. See = Tex. R. App. P.=20 38.1(e).

^{^[17]} =20 Our dissenting colleague asserts that this court should apply the=20 Chevron factors and decide not to apply this = court=3Ds decision regarding the inherent-risk = doctrine=20 retroactively to the case at hand. See State Farm Fire = & Cas=20 Co. v. Gandy, 925 S.W.2d 696, 719B20 (Tex. 1996) (applying the = Chevron=20 factors in determining whether Texas Supreme Court decision should = be=20 applied retroactively). Presuming, without deciding, that courts = of=20 appeals have the ability to make their decisions prospective only = based on=20 these factors, the factors do not weigh in favor of an exception = to the=20 norm of retroactivity for court decisions. This court does = not=20 overrule any past precedent, and the history, purpose, and effect = of the=20 rule do not weigh against a retroactive application. We do = address=20 an issue of first impression in this court; however, the = resolution of=20 this issue for the Fourteenth Court of Appeals was clearly = foreshadowed by=20 the decisions in other courts of appeals and the Texas Supreme=20 Court=3Ds reference to the various possible = rules. =20 See Southwest Key Program, Inc., 81 S.W.3d at = 271B72. Applying this decision to the = case at=20 hand does not produce substantial inequitable results. If = this court=20 had followed the decisions of the other four courts of appeals = that=20 already have addressed this issue, there would be no negligence = duty as a=20 matter of law, and this court=3Ds judgment would be the same. =20

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