Date Issued: August 30, 2007
Appellants,=20
Sabrina Fleming as Next Friend of Gregory Lawson and Gregory =
Lawson, a=20
minor, appeal the trial court's order granting summary judgment =
against=20
them in their suit for damages based upon negligence and premises=20
liability against Astroworld, L.P. Appellants contend that =
Astroworld owed=20
Lawson a duty of care, notwithstanding he was injured by third =
parties on=20
property that was not owned by, or within the control of, =
Astroworld. We=20
affirm.
On July 4,=20
2004, Gregory Lawson visited Astroworld theme park in Houston, =
Texas, with=20
a friend and two relatives. Lawson, 15 years old at the time, =
spent the=20
day at the park, but left earlier than expected after witnessing a =
fight=20
inside the park. While Lawson waited for his ride in an Astroworld =
designated waiting area, fighting erupted again. Lawson estimated=20
approximately 50 to 60 people were in the waiting area and that =
about 30=20
were involved in the fighting. Lawson was a bystander. At least =
one=20
Astroworld security officer was injured during the fighting. =
Following the=20
second fight, Astroworld security personnel ejected everyone from =
the=20
waiting area, forcing them to leave the premises. Lawson=20
walked for about five minutes to a McDonald's located 500 yards =
away.=20
After approximately five minutes, a group of 10 people assaulted =
Lawson.=20
Lawson lost consciousness during the incident and three of his =
teeth were=20
knocked out. Lawson had never seen his assailants before they =
attacked=20
him, and the area where the attack took place has never been =
owned,=20
occupied, or controlled by Astroworld. Appellants=20
filed suit against Astroworld on February 25, 2005. Appellants' =
First=20
Amended Petition alleges that Astroworld was negligent because =
"there was=20
such a probability of a harmful event occurring that a reasonably =
prudent=20
person would have foreseen that the conduct [that caused Lawson's=20
injuries] or some similar event was likely to happen and would =
have taken=20
reasonable steps to prevent the occurrence of such an event." =
Appellants=20
also allege that the "negligent, careless, or reckless acts or =
omissions"=20
of Astroworld included failing to provide an adequate number of =
trained=20
security guards, failing to provide necessary procedures, failing =
to train=20
guards and other employees in proper safety, security, and =
protection=20
procedures, and failing to warn Lawson of the unsafe =
condition. Astroworld=20
designated Lawson's assailants as responsible third parties in =
accordance=20
with section 33.004(j) of the Civil Practice and Remedies Code. =
Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 33.004(j) (Vernon Supp. 2006). =
Astroworld=20
filed for summary judgment against appellants on the basis that =
Astroworld=20
did not owe a legal duty to Lawson "because the alleged attack did =
not=20
occur on property owned, operated, or controlled by" Astroworld.=20
Appellants countered by alleging that Astroworld created the =
dangerous=20
condition that permitted the criminal acts that caused Lawson's =
injuries.=20
The trial=20
court granted Astroworld's motion for summary judgment. =
We review=20
summary judgments de novo. Valence Operating Co. v.=20
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the standard =
of=20
review for traditional summary judgment, the moving party must =
establish=20
that no material fact issue exists, and that it is entitled to =
judgment as=20
a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. =
&=20
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). =
Summary=20
judgment for a defendant is proper when the defendant negates at =
least one=20
element of each of the claimant's theories of recovery. Sci. =
Spectrum,=20
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the =
defendant=20
produces evidence warranting summary judgment, the plaintiff must =
present=20
evidence that raises a fact issue. Walker v. Harris, 924 =
S.W.2d=20
375, 377 (Tex. 1996). In an appeal from a take-nothing summary =
judgment,=20
the reviewing court should view all evidence in the light most =
favorable=20
to the nonmovant and indulge every reasonable inference in the =
nonmovant's=20
favor. Id.
The=20
essential elements of a negligence cause of action are: (1) a =
legal duty=20
owed by the defendant to the plaintiff; (2) a breach of that duty; =
and (3)=20
damages proximately caused by and resulting from the breach. =
W. Invs.,=20
Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Premises =
liability is=20
a special form of negligence in which the duty owed to the =
plaintiff=20
depends upon his status as an invitee, licensee, or trespasser on =
the=20
premises. See id.; see also Rosas v. Buddie's Food=20
Store, 518 S.W.2d 534, 536 (Tex. 1975). In the case of an =
invitee,=20
the premises liability inquiry focuses on whether the defendant=20
proximately caused the plaintiff's injuries by failing to use =
ordinary=20
care to reduce or eliminate an unreasonable risk of harm created =
by a=20
premises condition that it knew or should have known existed.=20
Urena, 162 S.W.3d at 550. Duty is a=20
threshold inquiry requiring the plaintiff to prove the existence =
and=20
violation of a duty owed by the defendant. Centeq Realty, Inc. =
v.=20
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If there is no =
duty,=20
liability for negligence cannot exist. Thapar v. Zezulka, =
994=20
S.W.2d 635, 637 (Tex. 1999). Generally, no person has a legal duty =
to=20
protect another from the criminal acts of a third person. =
Timberwalk=20
Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. =
1998).=20
One exception to this rule may apply when a person controls the =
premises=20
where the criminal acts occur. Id. "One who controls . . =
.=20
premises does have a duty to use ordinary care to protect invitees =
from=20
criminal acts of third parties if he knows or has reason to know =
of an=20
unreasonable and foreseeable risk of harm to the invitee." Id. =
(citing Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 =
(Tex.=20
1997). This duty=20
derives from the concept that the party with the "power of control =
or=20
expulsion" is in the best position to protect against the harm. =
Exxon=20
Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). When the =
party with=20
the power of control should reasonably anticipate criminal conduct =
on the=20
part of third persons on its premises, that party has a duty to =
take=20
precautions against it. Id. A =
second=20
exception may apply to a person who is not in control of the =
property at=20
the time of the injury, but nevertheless creates a condition that =
permits=20
or brings into being the criminal actions that result in the =
claimant's=20
injury. Lefmark Mgmt. Co., 946 S.W.2d at 54 (citing =
Strakos=20
v. Gehring, 360 S.W.2d 787 (Tex. 1962)). Whether a duty =
exists under=20
either theory is a question of law. See Centeq Realty, =
Inc., 899=20
S.W.2d at 197.
1.=20
Unreasonable and Foreseeable Risk Because=20
Lawson's injuries resulted from the criminal conduct of a third =
party,=20
Astroworld owed him no duty of protection from an unreasonable and =
foreseeable risk unless Astroworld had the power of control over =
the=20
premises where the conduct occurred. See Timberwalk, 972 =
S.W.2d=20
at 756; Tidwell, 867 S.W.2d at 21. Adam Loredo, =
Astroworld's=20
Safety and Risk Manager, stated in an affidavit that the area =
identified=20
as the scene of the assault had never been "owned, occupied, or=20
controlled" by Astroworld, Six Flags Theme Parks, or any of its =
affiliates=20
or subsidiaries. See LaFleur v. Astrodome-Astrohall Stadium=20
Corp., 751 S.W.2d 563, 566 (Tex. App.--Houston [1st Dist.] =
1988, no=20
writ). Appellants=20
do not attempt to refute Astroworld's assertion and evidence that=20
Astroworld did not own or control the site of the assault. =
Appellants=20
failed to raise a material fact issue as to whether Astroworld =
owed a duty=20
of protection from an unreasonable and foreseeable risk. See=20
Timberwalk, 972 S.W.2d at 756. 2.=20
Creation of Condition Appellants=20
assert that a landowner can be liable for injuries suffered by an =
invitee=20
that occurred off the landowner's property when the invitee: (1) =
was a=20
minor; (2) was forced to leave the landowner's property when the =
landowner=20
knew or should have known that the invitee was in imminent risk of =
harm;=20
and (3) had no safe haven to which to retreat. Appellants claim =
that=20
Astroworld created the dangerous condition by ejecting Lawson from =
its=20
premises after repeated incidents of violence had occurred at the =
park, in=20
the waiting area, and in the area within the immediate vicinity of =
the=20
park. Appellants=20
have cited no authority, and we are aware of none, that would =
create a=20
duty by Astroworld to be responsible for the criminal acts of =
third=20
parties merely because Astroworld failed to control a crowd of=20
unsupervised young people who had assembled on property that was =
not=20
within its control. See, e.g., Randle v. Stop N' Go Markets of =
Texas,=20
Inc., 929 S.W.2d 17, 18-19 (Tex. App.--Houston [1st Dist.] =
1996, no=20
writ) (business operator does not owe duty to protect customers =
against=20
intentional third party acts committed off business premises when =
initial,=20
non-threatening contact occurred on property) Here, there=20
is no evidence that Lawson's assailants had ever been to =
Astroworld, had=20
any association with Astroworld, or were involved with the =
fighting at=20
Astroworld earlier that day. Lawson had never seen his assailants =
before=20
the assault in the McDonald's parking lot. Appellants failed to =
raise a=20
material fact issue as to whether Astroworld created a condition =
that=20
permitted or brought into being the criminal actions that resulted =
in=20
Lawson's injury. See Lefmark, 946 S.W.2d at=20
55.
Finding no=20
error in the granting of summary judgment, we affirm the judgment. =
Davie=20
Wilson Panel=20
consists of Justices Alcala, Hanks, and Wilson.=20
1. The Honorable Davie Wilson, retired =
Justice, Court=20
of Appeals, First District of Texas at Houston, participating by=20
assignment.