Texas Judiciary Online - HTML Opinion

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Opinion issued May 31, = 2007=20

In The

Court = of=20 Appeals

For=20 The

First = District=20 of Texas

NO. = 01-05-00838-CV

CRAIG = THOMAS, KAREN=20 ANN THOMAS, KAITLIN JADE THOMAS, and CAROLINE ANGELENE THOMAS,=20 Appellants

CNC = INVESTMENTS,=20 L.L.P, Appellee

On = Appeal from the=20 190th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2004-32012

O P I N = I O=20 N

Appellants, Craig=20 Thomas, Karen Ann Thomas, Kaitlin Jade Thomas, and Caroline = Angelene=20 Thomas, appeal from a take-nothing summary judgment rendered upon = the=20 motion of appellee, CNC Investments, L.L.P. ("CNC"). We determine = whether=20 the trial court erred by granting CNC's motion for summary = judgment on=20 appellants' causes of action against CNC for vicarious liability = for=20 assault, premises liability, and negligent hiring. We affirm the = judgment=20 of the trial court.

Background

On=20 July 29, 2002, Darrell Gordon, a Harris County Sheriff's deputy, = was=20 working an extra job at the Oaks of Woodforest apartment = complex.^{=20
(1)} At about = 12:15 a.m.,=20 Deputy Gordon requested assistance from Craig Thomas and Toby = Kroger,^{=20
(2)} who were = also=20 Harris County Sheriff's deputies, to conduct a property inspection = of the=20 complex because Deputy Gordon was working alone that night. = Deputies=20 Thomas and Kroger were both off duty, working an extra job at = another=20 apartment complex in the area, and agreed to help Deputy Gordon = patrol the=20 Oaks of Woodforest apartment complex. While the deputies were = patrolling=20 the complex, a tenant gave them a tip about a stolen Dodge Durango = in the=20 apartment complex parking lot. During their patrol of the = apartment=20 complex, the deputies saw a Dodge Durango matching the informant's = description of the stolen vehicle. Deputies = Gordon=20 and Kroger approached the driver of the Dodge Durango. The suspect = started=20 to drive away, and Deputies Gordon and Kroger shouted, "Sheriff's=20 Department. Stop the vehicle. Stop the vehicle." The suspect = revved the=20 truck's engine and drove past Deputies Kroger and Gordon toward = Deputy=20 Thomas. Deputy Thomas turned his flashlight on himself "so that = [the=20 driver] could see that [Deputy Thomas] had a badge and 'Sheriff' = across=20 [his] chest." When the suspect continued to accelerate toward = Deputy=20 Thomas, all of the deputies fired shots at the driver. Deputy = Thomas fired=20 shots first, then Deputies Kroger and Gordon fired several shots. = The=20 suspect ran over Deputy Thomas. At some point while Deputy Gordon = was=20 shooting at the suspect, he accidentally shot Deputy Thomas in the = leg.=20 While the suspect was driving away, Deputy Kroger fired four more = rounds,=20 shooting the suspect in the back of the neck.

Appellants=20 sued CNC, the company that paid Deputy Gordon to patrol the Oaks = of=20 Woodforest apartment complex. In their petition, appellants = alleged that=20 (1) CNC was vicariously liable for Deputy Gordon's assault of = Deputy=20 Thomas, i.e., Deputy Gordon's reckless discharge = of his=20 firearm, which injured Deputy Thomas; (2) CNC had a duty to use = ordinary=20 care to protect Deputy Thomas against an unreasonable and = foreseeable risk=20 of harm from the criminal acts of third parties on its premises = because=20 CNC failed to have adequate security and to maintain the access = gate at=20 its apartment complex; and (3) CNC did not use ordinary care in=20 determining whether Deputy Gordon was competent to be hired to = patrol its=20 premises.

In its=20 answer, CNC entered a general denial and pleaded that (1) CNC was = not=20 vicariously liable because Deputy Gordon was acting as a = public-safety=20 officer when he accidentally shot Deputy Thomas, (2) CNC was not=20 vicariously liable because Deputy Gordon was an independent = contractor and=20 not its employee, (3) Deputy Thomas was barred from recovering = damages for=20 injuries on its premises under the "firefighter's rule," (4) CNC = was not=20 liable for Deputy Thomas's injuries on its premises because his = injuries=20 were the cause of third parties beyond its control, and (5) Deputy = Thomas's recovery should be reduced or barred under the doctrine = of=20 proportionate responsibility.

CNC moved=20 for traditional summary judgment on appellants' assault cause of = action on=20 the grounds that (1) CNC was not vicariously liable because Deputy = Gordon=20 was acting as a public-safety officer when he shot Deputy Thomas = and (2)=20 CNC was not vicariously liable because Deputy Gordon's conduct was = negligent, not intentional, and, therefore, CNC could not be held = liable=20 for its independent contractor's negligence.^{=20
(3)}

CNC moved=20 for traditional summary judgment against appellants' premises- = liability^{=20
(4)} cause of = action on=20 the grounds that (1) Deputy = Thomas=20 was barred from recovering for his injuries on its premises under = the=20 "firefighter's rule"; (2) CNC's failure to have an additional = off-duty=20 Sheriff's deputy on the premises was not the proximate cause of = Deputy=20 Thomas's injuries; (3) CNC's failure to maintain the access gate = on the=20 premises was not the proximate cause of Deputy Thomas's injuries; = and (4)=20 Deputy Thomas was a licensee who had actual knowledge of the = danger of=20 criminal activity at the complex, and, therefore, CNC did not have = a duty=20 to Deputy Thomas.

CNC moved=20 for traditional summary judgment against appellants' = negligent-hiring=20 cause of action on the ground that CNC did not breach any duty = because it=20 had used ordinary care in hiring Deputy Gordon to do security work = because=20 he was a Sheriff's deputy. CNC moved for no-evidence summary = judgment=20 against appellants' negligence-hiring cause of action on the = ground that=20 there was no evidence that Deputy Gordon was not qualified to do = security=20 work.

On August=20 5, 2005, the trial court granted CNC's motion for summary = judgment. The=20 trial court did not specify on what basis it rendered summary = judgment. On=20 August 22, 2005, the trial court signed a final judgment = dismissing all of=20 appellants' claims against CNC. Standard of Review and = Burdens of=20 Proof

The=20 propriety of summary judgment is a question of law, and we thus = review the=20 trial court's ruling de novo. Provident Life & Accident = Ins. Co.=20 v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a = summary=20 judgment, evidence favorable to the non-movant is taken as true, = and all=20 reasonable inferences are indulged in the non-movant's favor. = Johnson=20 County Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. = 1996).=20 When a summary-judgment order does not state the grounds upon = which it was=20 granted, the summary judgment may be affirmed on any of the = movant's=20 theories that has merit. Cincinnati Life Ins. Co. v. = Cates, 927=20 S.W.2d 623, 627 (Tex. 1996). Appellate courts should consider all = grounds=20 for summary judgment that the movant presented to the trial court = when=20 they are properly preserved for appeal. Id. at 625. Thus, = the=20 party appealing from such a judgment must show that each of the=20 independent arguments alleged in the motion is insufficient to = support the=20 order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.=20 App.--Houston [1st Dist.] 1988, writ denied); McCrea v. = Cubilla Condo.=20 Corp., 685 S.W.2d 755, 757 (Tex. App.--Houston [1st Dist.] = 1985, writ=20 ref'd n.r.e.).

The movant=20 for traditional summary judgment has the burden of showing that = there is=20 no genuine issue of material fact and that he is entitled to = judgment as a=20 matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. = Estate of=20 Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. = Mgmt.=20 Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for=20 traditional summary judgment must either disprove at least one = element of=20 each of the plaintiff's causes of action or conclusively establish = each=20 essential element of its affirmative defense, thereby rebutting = the=20 plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d = 339,=20 341 (Tex. 1995).

A = no-evidence motion for summary judgment is essentially a directed = verdict=20 granted before trial, to which we apply a legal-sufficiency = standard of=20 review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, = 750-51 (Tex.=20 2003). In general, a party seeking a no-evidence summary judgment = must=20 assert that no evidence exists as to one or more of the essential = elements=20 of the non-movant's claims on which the non-movant would have the = burden=20 of proof at trial. Flameout Design & Fabrication, Inc. v. = Pennzoil=20 Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st = Dist.]=20 1999, no pet.). Once the movant specifies the elements on which = there is=20 no evidence, the burden shifts to the non-movant to raise a fact = issue on=20 the challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence = summary=20 judgment will be sustained on appeal when (1) there is a complete = absence=20 of evidence of a vital fact, (2) the court is barred by rules of = law or of=20 evidence from giving weight to the only evidence offered by the = non-movant=20 to prove a vital fact, (3) the evidence offered by the non-movant = to prove=20 a vital fact is no more than a scintilla, or (4) the non-movant's = evidence=20 conclusively establishes the opposite of a vital fact. King=20 Ranch, 118 S.W.3d at 751.

Summary=20 Judgment

In=20 seven issues, appellants argue that the trial court erred by = granting=20 CNC's motion for summary judgment on their causes of action = against CNC=20 for vicarious liability for assault, premises liability, and = negligent=20 hiring.

A.=20 Vicarious Liability for Assault

In=20 issues one and two, appellants argue that the trial court erred by = granting CNC's traditional motion for summary judgment on their = assault=20 cause of action against CNC. In issue one, appellants argue that = the trial=20 court erred by granting CNC's motion for traditional summary = judgment on=20 the ground that CNC was not vicariously liable because Deputy = Gordon was=20 acting as a public-safety officer when he shot Deputy Thomas. In = issue=20 two, appellants argue that the trial court erred by granting CNC's = motion=20 for traditional summary judgment on the ground that CNC was not=20 vicariously liable because Deputy Gordon's conduct was negligent, = not=20 intentional, and, therefore, CNC could not be held liable for its=20 independent contractor's negligence.

CNC=20 alleged in its summary-judgment motion that it was entitled to = traditional=20 summary judgment on appellants' assault cause of action based on = the=20 theory of respondeat superior because Deputy Gordon was acting as = a=20 public-safety officer when Deputy Thomas was shot. To be entitled = to=20 traditional summary judgment, CNC had to prove that there was no = issue of=20 material fact that Deputy Gordon was performing a public duty, = such as the=20 enforcement of general laws. See Mansfield v. C.F. Bent Tree = Apartment=20 Ltd. P'ship, 37 S.W.3d 145, 149 (Tex. App.--Austin 2001, no=20 pet.).

Under the=20 doctrine of respondeat superior, an employer may be vicariously = liable for=20 the tortious acts of an employee. St. Joseph Hosp. v. = Wolff, 94=20 S.W.3d 513, 541-42 (Tex. 2002) (quoting Baptist Mem'l Hosp. = Sys. v.=20 Sampson, 969 S.W.2d 945, 947 (Tex. 1998)); = Mansfield, 37=20 S.W.3d at 149. When determining the status of an off-duty officer, = we ask,=20 "[I]n what capacity was the officer acting at the time he = committed the=20 acts for which the complaint is made?" Blackwell v. Harris=20 County, 909 S.W.2d 135, 139 (Tex. App.--Houston [14th Dist.] = 1995,=20 writ denied). If a public-safety officer is performing a public = duty, such=20 as enforcement of general laws, he is acting in the course and = scope of=20 his employment as a police officer, and the private employer is = not=20 vicariously liable for the officer's actions, even if the employer = may=20 have directed those activities. Mansfield, 37 S.W.3d at = 150;=20 Larkin v. Johnson, 44 S.W.3d 188, 189-90 (Tex. = App.--Houston=20 [14th Dist.] 2001, pet. denied); see also Blackwell, 909 = S.W.2d=20 at 139. If an off-duty officer observes a crime, he becomes, as a = matter=20 of law,=20 a=20 public-safety officer. Mansfield, 37 S.W.3d at 150; = City of=20 Dallas v. Half Price Books, Records, Magazines, = Inc., 883=20 S.W.2d 374, 377 (Tex. App.--Dallas 1994, no writ) (explaining that = public-safety officer becomes government agent when he begins to = function=20 as one).

Appellants=20 cite to Bridges v. Robinson to support their proposition = that CNC=20 may be liable for injuries that Deputy Thomas sustained; however, = that=20 case did not involve facts in which the off-duty officers had = assumed, as=20 a matter of law, the role of public-safety officers when the event = in=20 dispute occurred. See id., 20 S.W.3d 104, 111 (Tex. = App.--Houston=20 [14th Dist.] 2000, no pet.) (noting that if police officer is = "engaged in=20 the protection of the employer's property, ejecting trespassers or = enforcing rules and regulations promulgated by the employer," it = then=20 becomes jury question as to whether he was acting as public = officer or as=20 agent of private employer). In Bridges, a Dillard's = customer=20 argued with two customer service employees. During the argument, = two=20 salaried Dillard's security officers, who were also Harris County=20 Sheriff's deputies, asked the customer to provide identification = and=20 escorted him to a back office. See id. at 108. The=20 summary-judgment evidence showed that the officers hogtied the = customer=20 and rode and otherwise abused him until he died. See id. = at=20 109-10. The Bridges court held that, considering the=20 summary-judgment evidence, it was unclear if and when those = officers=20 assumed a role as public-safety officers; therefore, whether at = material=20 times those officers were acting in the course and scope of their=20 employment remained a disputed fact issue. See id. at = 110;=20 see also Blackwell, 909 S.W.2d at 139.

In cases=20 such as Bridges, the question of the officer's role is = answered=20 by the trier of fact. See Rucker v. Barker, 192 S.W. 528, = 529=20 (Tex. 1917) (stating that officer took no steps toward arrest = until he=20 consulted with his private employer); Tex. & N.O.R. Co. v. = Parsons, 113 S.W. 914, 916 (Tex. 1908) (stating that officer = never=20 showed intent to arrest trespassers, but intended only to put them = off=20 company's property). Compare Larkin, 44 S.W.3d at 190 = (holding=20 that trial court did not err in granting summary judgment in favor = of=20 store when deputy, who was private security guard for store, = followed=20 customer outside and attempted investigative stop for suspicion of = disturbing peace because he was performing duties as public-safety = officer; thus, store could not be vicariously liable for officer's = actions=20 as matter of law); Mansfield, 37 S.W.3d at 150-51 = (holding that=20 trial court did not err in granting summary judgment in favor of = apartment=20 complex when police officer, who was private security guard for = apartment=20 complex, discovered visitor exposing himself at complex because = officer=20 was performing duties as police officer at time that he detained = visitor;=20 thus, apartment complex could not be vicariously liable for = officer's=20 actions as matter of law); Half Price Books, Records, = Magazines,=20 Inc., 883 S.W.2d at 377 (holding that police officer, who was = private=20 security guard for store, ceased being independent contractor and = became=20 on-duty police officer when he saw crime being committed). =

In this=20 case, CNC's evidence proved that Deputy Gordon had assumed the = role of a=20 public-safety officer prior to shooting Deputy Thomas. = Deputy=20 Gordon Deputies Kroger and Thomas recalled that Deputy Gordon wore = a "raid=20 jacket"^{=20
(5)} and his = badge and=20 verbally identified himself as "Sheriff's Department" while = attempting to=20 detain the suspect of the suspected stolen vehicle. In = criminal cases,=20 these actions reflect that an officer is acting in his official = capacity.=20 See Mansfield, 37 S.W.3d at 149-50 (citing to Hafdahl = v.=20 State, 805 S.W.2d 396, 401 (Tex. Crim. App. 1990) ("[W]hen = the police=20 officer stopped at the scene of the accident and approached = appellant=20 shouting 'halt, halt, stop, police,' the officer was no longer off = duty.")=20 and Selvage v. State, 680 S.W.2d 17, 21 (Tex. Crim. App. = 1984)=20 ("[The officer] assumed the role of a peace officer when he = removed his=20 coat to identify himself as a Deputy Sheriff and approached = appellant in=20 an attempt to deter him from wrongdoing.")). Deputy Gordon was = attempting=20 to detain the suspect and to protect fellow officers from the = suspect when=20 Deputy Thomas was injured. Appellants produced = no evidence=20 raising a fact issue regarding CNC's vicarious liability for = assault.=20 The = undisputed=20 evidence showed that Deputy Gordon was performing his public duty = by=20 investigating the report of the stolen vehicle and attempting to = detain=20 the suspect. Accordingly, CNC cannot be held liable for Deputy = Gordon's=20 actions while he was attempting to apprehend the suspect and = suspected=20 stolen vehicle.

We=20 hold that the trial court did not err in rendering traditional = summary=20 judgment for CNC on appellants' assault cause of action on the = ground that=20 CNC was not vicariously liable because Deputy Gordon was acting as = a=20 public-safety officer when Deputy Thomas was injured. See = Estate of=20 Milo, 909 S.W.2d at 510.

We overrule=20 appellants' issue one.

We=20 have already held that the trial court did not err in rendering=20 traditional summary judgment for CNC on appellants' assault cause = of=20 action. Given our disposition on issue one, we need not reach = appellants'=20 issue two, in which appellant argues that the trial court erred in = rendering traditional summary judgment for CNC on appellants' = assault=20 cause of action on the ground that CNC was not vicariously liable = because=20 Deputy Gordon's conduct was negligent, not intentional, and, = therefore,=20 CNC could not be held liable for its independent contractor's = negligence.=20 See Cincinnati Life Ins. Co., 927 S.W.2d at 625-26 = (holding that=20 if summary-judgment order did not specify ground or grounds on = which trial=20 court relied for its ruling, appellate court must affirm summary = judgment=20 if any theory that movant advanced has = merit).

B.=20 Premises Liability

In=20 issues three, five, six, and seven, appellants argue that the = trial court=20 erred by granting CNC's motion for summary judgment on their=20 premises-liability cause of action.

In issue=20 three, appellants argue that the trial court erred by granting = CNC's=20 motion for summary judgment on the ground that Deputy Thomas was = barred=20 from recovering for his injuries on its premises under the = "firefighter's=20 rule." In issue five, appellants argue that the = trial=20 court erred by granting CNC's motion for summary judgment on the = ground=20 that CNC's failure to have an additional off-duty Sheriff's deputy = on its=20 premises was not the proximate cause of Deputy Thomas's = injuries.=20 In issue six, appellants argue that the trial court erred = by=20 granting CNC's motion for summary judgment on the ground that = CNC's=20 failure to maintain the access gate on the premises was not the = proximate=20 cause of Deputy Thomas's injuries. In issue = seven,=20 appellants argue that the trial court erred by granting CNC's = motion for=20 summary judgment on the ground that Deputy Thomas was a licensee = who had=20 actual knowledge of the criminal activity at the complex, and, = therefore,=20 CNC did not breach its duty to Deputy Thomas.

CNC alleged=20 in its summary-judgment motion that it was entitled to traditional = summary=20 judgment on appellants' premises-liability cause of action on the = ground=20 that Deputy Thomas was barred from recovering for his injuries = under the=20 "firefighter's rule" because Deputy Thomas's injuries resulted = from a risk=20 inherent to a police officer detaining a suspect of the stolen = vehicle.=20 Appellants argued in their response to CNC's motion for summary = judgment=20 that Deputy Thomas was excepted from the "firefighter's rule" = because his=20 injuries were caused by wanton, willful, or intentional behavior = or acts=20 of negligence occurring after Deputy Thomas had reached the scene. = Appellants also argued that CNC owed Deputy Thomas a duty as an = invitee,=20 not a licensee, because Deputy Thomas was conducting business for = the Oaks=20 of Woodforest by assisting Deputy Gordon in his extra-job patrol = on CNC's=20 property. 1. Law

A = negligence cause of action requires proof that (1) the defendant = owed a=20 legal duty to the plaintiff, (2) the defendant breached that duty, = and (3)=20 the breach proximately caused the plaintiff's injury. D. = Houston, Inc.=20 v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The threshold issue = in a=20 negligence action is duty. Greater Houston Transp. v. = Phillips,=20 801 S.W.2d 523, 525 (Tex. 1990). The existence of a legal duty is = a=20 question of law unless the facts giving rise to the duty are = disputed.=20 Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d = 392, 395=20 (Tex. 1991); see Praesel v. Johnson, 967 S.W.2d 391, 394 = (Tex.=20 1998).

The=20 decision to impose a legal duty involves complex considerations of = public=20 policy, including social, economic, and political questions and = their=20 application to the particular facts at hand. Praesel, 967 = S.W.2d=20 at 397; Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993). = In=20 deciding whether to impose a duty on a particular defendant, = courts weigh=20 the risk, foreseeability, and likelihood of injury against the = social=20 utility of the actor's conduct, the magnitude of the burden of = guarding=20 against the injury, and the consequences of placing that burden on = the=20 actor. Praesel, 967 S.W.2d at 397; Otis Eng'g Corp. = v.=20 Clark, 668 S.W.2d 307, 309 (Tex. 1983). Other proper = considerations=20 include whether one party would generally have superior knowledge = of the=20 risk or a right to control the actor who caused the harm.=20 Praesel, 967 S.W.2d at 397-98; Graff v. Beard, = 858=20 S.W.2d at 920. Of these, the foremost consideration is the = foreseeability=20 of the risk. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 = (Tex.=20 1987).

In cases=20 involving public-safety officers, Texas courts typically have = applied the=20 duties owed to an ordinary licensee, including the duty to warn of = known,=20 dangerous conditions.^{=20
(6)} See = Campus=20 Mgmt., Inc. v. Kimball, 991 S.W.2d 948, 950-51 (Tex. = App.--Fort Worth=20 1999, pet. denied). Under the common-law "firefighter's rule,"=20 firefighters and=20 police officers are barred from recovering in premises-liability = cases for=20 injuries that result from risks inherent in responding to an = emergency if=20 the injuries are caused by only ordinary negligence. See=20 Peters v. Detsco, Inc., 820 S.W.2d 38, 40 (Tex. = App.--Houston=20 [14th Dist.] 1991, writ denied); see also Houston Belt & = Terminal=20 Ry. Co. v. O'Leary, 136 S.W. 601, 605-06 (Tex. Civ. App. = 1911, writ=20 ref'd); Juhl v. Airington, 936 S.W.2d 640, 647 (Tex. = 1996)=20 (Gonzalez, J., concurring). The = purpose of the=20 rule is to limit the recovery of firefighters and police officers = so that=20 citizens will not be discouraged from relying on the skill, = training, and=20 expertise of these public servants. Juhl, 936 S.W.2d at = 647. Two=20 exceptions to the firefighter's rule exist: when the licensor = commits=20 wanton, willful, or intentional behavior and when acts of = negligence occur=20 after the public-safety officer reaches the scene. See = Airington v.=20 Juhl, 883 S.W.2d 286, 291 (Tex. App.--El Paso 1994) (citing = Rosa=20 v. Dunkin' Donuts of Passaic, 583 A.2d 1129, 1133-34 (1991)), = rev'd on other grounds, 936 S.W.2d 640 (Tex. 1996). =

The duty=20 owed by a licensor to a licensee is not to injure him by willful = conduct,=20 by wanton conduct, or through gross negligence. Wal-Mart = Stores, Inc.=20 v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (citing State = v.=20 Tennison, 509 S.W.2d 560, 562 (Tex. 1974)). An exception to = this=20 general rule occurs when the licensor has knowledge of a dangerous = condition, and the licensee does not, a duty is owed on the part = of the=20 licensor either to warn the licensee of the dangerous condition or = to make=20 the condition reasonably safe. Id. at 709. If = the=20 licensee has the same knowledge about the dangerous condition as = the=20 licensor, then no duty to the licensee exists. Id. = Further, a=20 licensor owes no duty to warn a licensee or to make the condition=20 reasonably safe if the evidence conclusively establishes that the = licensee=20 perceived the alleged dangerous condition. Id.

2.=20 Analysis

To be=20 entitled to traditional summary judgment, CNC had to prove that = there was=20 no issue of material fact that Deputy Thomas was acting as a = public-safety=20 officer when he was injured; Deputy Thomas's injuries resulted = from risks=20 inherent in responding to an emergency; CNC did not breach its = duty to=20 warn Deputy Thomas of known, dangerous conditions; and Deputy = Thomas's=20 injuries were not caused by either CNC's wanton, willful, or = intentional=20 behavior or CNC's acts of negligence occurring after Deputy Thomas = reached=20 the scene. See Juhl, 936 S.W.2d at 647 (Gonzalez, J.,=20 concurring); Houston Belt & Terminal Ry. Co., 136 = S.W. at=20 605-06; Peters, 820 S.W.2d at 40; see also = Airington,=20 883 S.W.2d at 291 (citing Rosa, 583 at 1133-34). =

The=20 evidence conclusively shows that Deputy Thomas was acting as a=20 public-safety officer and that his risk of injury was inherent in=20 responding to the emergency, such as a suspect's fleeing in a = stolen=20 vehicle and threatening to cause serious bodily injury to a police = officer=20 with the car. Deputy Thomas was shot by Deputy Gordon and run over = by the=20 suspect while investigating the report of a stolen vehicle and = attempting=20 to detain the suspect. Deputy Thomas was wearing departmental = issued=20 uniform pants, his raid vest that said "Sheriff" across the front = and=20 back, and his Sheriff's badge. While attempting to apprehend the = suspect,=20 Deputy Thomas "turned the flashlight on myself so that [the = suspect] could=20 see that I had a badge and 'Sheriff' across my chest." Deputy = Thomas=20 received workers' compensation benefits from the Harris County = Sheriff's=20 Department as a result of the injuries that he = sustained.

Appellants=20 argue in issue seven that CNC owed Deputy Thomas the duties owed = to an=20 invitee, not a licensee. Specifically, appellants argue that it is = a=20 "disputed fact issue" as to whether Deputy Thomas was an invitee = or a=20 licensee because Deputy Gordon requested that Deputies Thomas and = Kroger=20 assist him "in making rounds for the purpose of protecting CNC's=20 property." We disagree. The above-referenced evidence conclusively = shows=20 that Deputy Thomas was acting as a public-safety officer and that = his risk=20 of injury was inherent in responding to the emergency.^{=20
(7)} = Cf.=20 Mansfield, 37 S.W.3d at 150 (holding that if = off-duty officer=20 observes a crime, he becomes, as matter of law, = on-duty = officer);=20 Half Price Books, Records, Magazines, Inc., 883 = S.W.2d=20 at 377 (explaining that public-safety officer becomes government = agent=20 when he begins to function as one). Accordingly, CNC=20 owed Deputy Thomas the duties owed to a licensee. See Campus = Mgmt.,=20 Inc., 991 S.W.2d at 950-51 (recognizing that, in cases = involving=20 public-safety officers, Texas courts typically have applied duties = owed to=20 ordinary licensee, including duty to warn of known, dangerous = conditions).=20

The=20 evidence also conclusively shows that CNC did not breach its duty = to warn=20 Deputy Thomas of known, dangerous conditions and that = Deputy=20 Thomas's injuries were not caused by CNC's wanton, = willful, or=20 intentional behavior or CNC's acts of negligence = occurring after=20 he reached the scene, but, rather, by the criminal acts of a third = party. Cf. Timberwalk Apts. v. Partners Cain, 972 S.W.2d = 749, 756=20 (Tex. 1998) (holding that, generally, owner has no legal duty to = protect=20 another from criminal acts of third party; however, owner owes = duty to=20 those who may be harmed by criminal acts on owner's premises when = risk of=20 criminal conduct is so great that it is both unreasonable and=20 foreseeable); Centeq Rlty., Inc. v. Siegler, 899 S.W.2d = 195, 197=20 (Tex. 1995). Indeed, to hold CNC liable for Deputy Thomas's = injuries=20 resulting from risks inherent in responding to an emergency goes = against=20 the nature of the service provided by police officers, = i.e.,=20 police officers are employed to protect the public and to enforce = laws.=20 See Farmer v. B & G Food Enters., Inc., 818 So.2d = 1154, 1159=20 (Miss. 2002) (recognizing that societal expectations supporting=20 firefighter's rule turn on fact that public hires, trains, and = compensates=20 police officers to deal with dangerous, but inevitable,=20 situations); = Kreski v.=20 Modern Wholesale Elec. Supply Co., 415 N.W.2d 178, = 187=20 (Mich. 1987); see also Pinter v. Am. Family Mut. Ins. = Co., 613=20 N.W.2d 110, 117 (Wis. 2000) (stating, "Fundamentally, [the = firefighter's=20 rule] is an expression of public policy because it prohibits a=20 [public-safety officer] from 'complaining about the negligence = that=20 creates the very need for his or her employment.'"). Deputy Thomas = admitted, "I feel that all police work is unsafe." The undisputed = evidence=20 showed that Deputy Thomas was aware of the criminal activity at = the Oaks=20 of Woodforest apartment complex and had made arrests personally = for=20 aggravated assault with a deadly weapon on that property. =

Based on = the=20 undisputed summary-judgment evidence, we hold that CNC owed Deputy = Thomas=20 the duties owed to a licensee and that CNC was entitled to = traditional=20 summary judgment on appellants' premises-liability cause of action = on the=20 ground that Deputy Thomas was barred from recovering for his = injuries on=20 its premises under the firefighter's rule. = See Estate=20 of Milo, 909 S.W.2d at 510.

Accordingly, we=20 overrule appellants' issues three and = seven.

We=20 have already held that the trial court did not err in rendering=20 traditional summary judgment for CNC on appellants' = premises-liability=20 cause of action. Given our disposition on issues three and seven, = we need=20 not reach appellants' issue five, arguing that the trial court = erred in=20 rendering traditional summary judgment for CNC on appellants'=20 premises-liability cause of action on the ground that CNC's = failure to=20 have an additional off-duty Sheriff's deputy on its premises was = not the=20 proximate cause of Deputy Thomas's injuries, or issue six, arguing = that=20 the trial court erred in rendering traditional summary judgment = for CNC on=20 appellants' premises-liability cause of action on the ground that = CNC's=20 failure to maintain the access gate on the premises was not the = proximate=20 cause of Deputy Thomas's injuries. See Cincinnati Life Ins. = Co.,=20 927 S.W.2d at 625-26 (holding that if summary-judgment order did = not=20 specify ground or grounds on which trial court relied for its = ruling,=20 appellate court must affirm summary judgment if any theory that = movant=20 advanced has merit).

C.=20 Negligent Hiring

In issue=20 four, appellants argue that, with respect to their = negligent-hiring cause=20 of action, the trial court erred by granting CNC's motion for = summary=20 judgment on the ground that CNC did not breach any duty because it = had=20 used ordinary care in hiring Deputy Gordon to do security work.=20

CNC alleged=20 in its summary-judgment motion that there was no evidence on the=20 breach-of-duty element of appellants' negligent-hiring cause of = action.=20 See Tex. R. Civ. P. 166a(i). The burden then shifted to=20 appellants to present "more than a scintilla of probative evidence = to=20 raise a genuine issue of material fact." See Forbes Inc. v. = Granada=20 Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than = a=20 scintilla of evidence exists when the evidence is enough to allow=20 "reasonable and fair-minded people to differ in their = conclusions."=20 Id. Therefore, to defeat CNC's no-evidence motion for = summary=20 judgment, appellants had to present the court with some evidence = on the=20 breach-of-duty element on the negligent-hiring cause of action. To = prosecute their claim of negligent hiring successfully, appellants = were=20 required to show (1) that CNS owed a legal duty to protect Deputy = Thomas=20 from Deputy Gordon's action and (2) that Deputy Thomas sustained = damages=20 proximately caused by CNC's breach of that legal duty. Houser = v.=20 Smith, 968 S.W.2d 542, 544 (Tex. App.--Austin 1998, no pet.); = see=20 also Peek v. Equip. Serv., Inc., 906 S.W.2d 529, 534 (Tex. = App.--San=20 Antonio 1995, no writ) (holding that basis of responsibility for = negligent=20 hiring is master's own negligence in hiring or retaining an = incompetent=20 servant whom the master knows or by exercise of reasonable care = should=20 have known was incompetent or unfit, thereby creating unreasonable = risk of=20 harm to others). The duty of the employer extends only to prevent = the=20 independent contractor from causing physical harm to a third = party.=20 Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97-98 = (Tex.=20 App.--Houston [14th Dist.] 1998, pet. denied).

The=20 components of proximate cause are cause in fact and = foreseeability.=20 Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d = 472, 477=20 (Tex. 1995). These elements cannot be established by mere = conjecture,=20 guess, or speculation. McClure v. Allied Stores of Tex., = Inc.,=20 608 S.W.2d 901, 903 (Tex. 1980). The test for cause in fact is = whether the=20 negligent "act or omission was a substantial factor in bringing = about=20 injury," without which the harm would not have occurred. = Prudential=20 Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, = 161=20 (Tex. 1995); see Havner v. E-Z Mart Stores, Inc., 825 = S.W.2d 456,=20 458-59 (Tex. 1992); Brown v. Edwards Transfer Co., 764 = S.W.2d=20 220, 223 (Tex. 1988). Cause in fact is not shown if the = defendant's=20 negligence did no more than furnish a condition that made the = injury=20 possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. = 1968).=20 Therefore, to prevent summary judgment on the asserted basis, = Deputy=20 Thomas had to produce more than a scintilla of evidence that CNC's = actions=20 in hiring Deputy Gordon were the cause in fact of his injuries and = that=20 Deputy Gordon's shooting Deputy Thomas and Deputy Thomas's = resulting=20 injuries were a foreseeable consequence of CNC's hiring of Deputy = Gordon.=20 See Houser v. Smith, 968 S.W.2d 542, 544 (Tex. = App.--Austin 1998,=20 no pet.).

Appellants=20 contend that Deputy Gordon's recklessly firing a gun was = foreseeable=20 because CNC had hired Deputy Gordon to protect its property with = deadly=20 force and CNC did not make an inquiry into Deputy Gordon's = qualifications=20 or training. Appellants argue that Deputy Gordon was not = "qualified" as a=20 patrol deputy for the Sheriff's Department and that he was = qualified only=20 to work in the capacity of a jailer. The summary-judgment evidence = showed=20 that the Sheriff's Department's policy did not prohibit deputies = who were=20 not patrol deputies from providing security at apartment = complexes.=20 Indeed, Lieutenant Kenneth Meloncon, the Sheriff's Department's = extra-jobs=20 coordinator, informed Deputy Gordon of the Oaks of Woodforest = assignment,=20 and the Sheriff's Department approved and issued a permit for = Deputy=20 Gordon's extra-job assignment at that apartment = complex.

In=20 addition, the summary-judgment evidence showed that Deputy Gordon = had had=20 the same Sheriff's academy training as a patrol officer. Deputy = Gordon was=20 instructed in academy training when to shoot tactically and when = the use=20 of deadly force was permissible. Appellants produced Deputy = Thomas's=20 deposition testimony, in which he testified that Deputy Gordon had = had=20 difficulty qualifying with his firearm. However, Deputy Thomas = admitted=20 that he had no personal knowledge of Deputy Gordon's firearm test = or=20 documentation showing that Deputy Gordon was not qualified to use = a=20 firearm.^{=20
(8)} This is = nothing=20 more than a scintilla of evidence that Deputy Gordon's recklessly = firing a=20 gun was foreseeable.

Even if CNC=20 had inquired about Deputy Gordon's qualifications or training, = appellants=20 did not produce more than a scintilla of evidence of matters that = would=20 have caused CNC reasonably to conclude that Deputy Gordon was not=20 qualified to provide security at its apartment complex. See = Boys Clubs=20 of Greater Dallas, Inc., 907 S.W.2d at 478 (holding that if=20 organization had investigated volunteer's criminal record = resulting=20 information would not have caused organization reasonably to = anticipate=20 his subsequent sexual assaults because volunteer's prior=20 driving-while-intoxicated convictions did not indicate criminal = conduct in=20 any way akin to sexual assault of young boys).

Additionally,=20 appellants' assertions that CNC's procedures were inadequate are = nothing=20 more than conclusory allegations unsupported by any evidence. = Appellants=20 presented no summary-judgment evidence to establish industry = standards for=20 hiring qualified security personnel. Appellants have produced no = evidence=20 that the qualifications advocated by appellants, i.e., = that CNC=20 should have hired only patrol deputies as security personnel, are=20 necessary, or that the failure to have such qualifications = constitutes=20 negligence. See Castillo v. Gared, Inc., 1 S.W.3d 781, = 786 (Tex.=20 App.--Houston [1st Dist.] 1999, pet. denied).

In sum,=20 appellants did not present more than a scintilla of probative = evidence to=20 raise a genuine issue of material fact. We hold that the trial = court did=20 not err by granting summary judgment on CNC's ground that there = was no=20 evidence on the breach-of-duty element of appellants' = negligent-hiring=20 cause of action.

We overrule=20 appellants' issue four.

Conclusion

We affirm=20 the judgment of the trial court.

Tim=20 Taft

Justice

Panel consists of Justices = Taft,=20 Jennings, and Alcala.=20

1. Lieutenant Kenneth Melancon, the = extra-jobs=20 coordinator for the Harris County Sheriff's Department, had = informed=20 Deputy Gordon of that off-duty assignment. The Sheriff's = Department=20 approved and issued a permit for Deputy Gordon's extra-job = assignment at=20 the Oaks of Woodforest apartment complex.

2. Although in his deposition, this deputy's = last name=20 is spelled "Kroeger," appellants and CNC spell it "Kroger" in = their=20 petition, motions, and briefs.=20

3. In the sections of CNC's motion for = summary=20 judgment entitled "Defendant cannot be held liable for alleged=20 negligent acts of any peace officer in performance of his = duties"=20 and "Defendant cannot be held liable for the negligent = acts=20 of an independent contractor providing security services," = CNC argued=20 grounds for summary judgment on appellants' assault cause of = action.=20 (Emphasis added.) CNC addressed its grounds for summary judgment = on=20 appellants' assault cause of action only under these "negligence"=20 headings. The trial court entered summary judgment on all of = appellants'=20 causes of actions.

Appellants=20 did not object or specially except that the heading was confusing = or that=20 CNC's ground for summary judgment was unclear in the trial=20 court. See = McConnell=20 v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. = 1993)=20 (stating that exception is required should non-movant wish to = complain on=20 appeal that grounds relied on by movant were unclear or = ambiguous). For=20 the reasons stated above, we look to the substance of CNC's = argument in=20 those sections of the motion for summary judgment as grounds for = summary=20 judgment on appellants' assault cause of action.=20

4. Appellants' live=20 petition lists their cause of action as "negligence." In their = petition,=20 appellants cited to Timberwalk Apartments, Partners, Inc. v. = Cain=20 and alleged that CNC had breached its duty by failing to = provide=20 adequate security. Id., 972 S.W.2d 749, 754 (Tex. 1998) = (holding=20 that complaint that landowner failed to provide adequate security = against=20 criminal conduct is ordinarily premises-liability claim); see = also=20 Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); = Centeq=20 Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); = Exxon=20 Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993).=20 Accordingly, we interpret appellants' petition as having = pleaded=20 a premises-liability cause of action.=20

5. Deputy Thomas described Deputy Gordon's = raid jacket=20 in his deposition as follows: "I remember [Deputy Gordon's] raid = jacket=20 had the sheriff's patches. He had a patch where his--his badge = patch and=20 it had real large yellow letters that said 'Sheriff' or 'Sheriff's = Department' on the front and back."=20

6. In older cases, some courts also had = found an=20 additional duty--not to injure the public-safety officer through = active=20 negligence. Houston Belt & Terminal Ry. Co. v. = Johansen, 179=20 S.W. 853, 853-54 (Tex. 1915); Houston Belt & Terminal Ry. = Co. v.=20 O'Leary, 136 S.W. 601, 605 (Tex. Civ. App. 1911, writ ref'd); = see=20 Tex. Cities Gas Co. v. Dickens, 168 S.W.2d 208, 211 (Tex. = 1943);=20 Campus Mgmt., Inc. v. Kimball, 991 S.W.2d 948, 950-51 = (Tex.=20 App.--Fort Worth 1999, pet. denied).=20

7. The summary-judgment evidence shows that = the=20 suspect was convicted of attempted capital murder and was = sentenced to 55 years in prison for running over Deputy Thomas. = See=20 Tex. Pen. Code Ann. =A7 19.03(a)1 (Vernon Supp. 2006) = (stating that a=20 person commits capital murder if he commits murder as defined = under=20 section 19.02(b)(1) and the person murders a peace officer or = fireman who=20 is acting in lawful discharge of official duty and whom the person = knows=20 is peace officer or fireman). Therefore, to convict the suspect of = the=20 attempted capital murder of Deputy Thomas, the trier of fact had = to find=20 that Deputy Thomas was a "peace officer" as defined in the Penal = Code and=20 the Code of Criminal Procedure. The Penal Code defines "peace = officer" as=20 a "person elected, employed, or appointed as a peace officer under = article=20 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, = Education=20 Code, or other law." Tex. Pen. Code Ann. =A7 1.07(a)(36) (Vernon = Supp.=20 2006). Article 2.12 of the Code of Criminal Procedure includes in = its list=20 of "peace officers": sheriffs, their deputies, and those reserve = deputies=20 who hold a permanent peace officer license under chapter 1701 of = the Texas=20 Occupations Code. Tex. Code Crim. Proc. Ann. art. 2.12(1) (Vernon = Supp.=20 2006).=20

8. When asked who had told him that Deputy = Gordon had=20 had difficulty qualifying with this firearm, Deputy Thomas = responded, "I=20 can't remember. It was just somebody--one of the officers came up = and=20 said, 'I was standing next to Gordon out at the range and, you = know, he=20 was just missing the whole target. He couldn't shoot at all, you = know.'"=20

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