Law-negligence cause of action | tort liability | duty owed by defendant to plaintiff |
A negligence cause of action has three elements: (1) a legal duty owed by one person
to another, (2) a breach of that duty, and (3) damages proximately caused by the
breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
Common-Law Negligence
A cause of action for negligence requires a legal duty owed by one person to another,
a breach of that duty, and damages proximately caused by the breach. D. Houston,
Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
ELEMENTS OF A NEGLIGENCE CLAIM IN TEXAS
To prevail on a negligence claim, a plaintiff must prove the existence of a legal duty, a
breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v.
Love, 92 S.W.3d 450, 454 (Tex. 2002). Here, Murchison presented less than a scintilla of evidence that Pham
breached a duty to Murchison. To the contrary, the evidence is uncontroverted that a car was parked in a way
that impaired Pham's view, and the collision occurred suddenly while Pham was “inching" forward to see
beyond this obstruction. There is no evidence that either driver could have seen the other in time to avoid an
accident, even given the low speed at which Walsh admits Pham was traveling.
Murchison v. Pham (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Guzman)
(no negligence shown in car collision suit, directed verdict affirmed)
AFFIRMED: Opinion by Justice Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00080-CV Gary Murchison v. Minh Quoc Pham
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull
Elements of negligence
Fleming v. Astroworld (Tex.App.- Houston [1st Dist.] Aug. 30, 2007)(Wilson)(premises liability)
The essential elements of a negligence cause of action are: (1) a legal duty owed by the defendant to the
plaintiff; (2) a breach of that duty; and (3) damages proximately caused by and resulting from the breach. W.
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Premises liability is a special form of negligence in
which the duty owed to the plaintiff depends upon his status as an invitee, licensee, or trespasser on the
premises. See id.; see also Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex. 1975). In the case of an
invitee, the premises liability inquiry focuses on whether the defendant proximately caused the plaintiff's
injuries by failing to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a
premises condition that it knew or should have known existed. Urena, 162 S.W.3d at 550.
Duty is a threshold inquiry requiring the plaintiff to prove the existence and violation of a duty owed by the
defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If there is no duty, liability for
negligence cannot exist. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). Generally, no person has a
legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v.
Cain, 972 S.W.2d 749, 756 (Tex. 1998). One exception to this rule may apply when a person controls the
premises where the criminal acts occur. Id. "One who controls . . . premises does have a duty to use ordinary
care to protect invitees from criminal acts of third parties if he knows or has reason to know of an
unreasonable and foreseeable risk of harm to the invitee." Id. (citing Lefmark Mgmt. Co. v. Old, 946 S.W.2d
52, 53 (Tex. 1997).
This duty derives from the concept that the party with the "power of control or expulsion" is in the best position
to protect against the harm. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). When the party with the
power of control should reasonably anticipate criminal conduct on the part of third persons on its premises,
that party has a duty to take precautions against it. Id.
A second exception may apply to a person who is not in control of the property at the time of the injury, but
nevertheless creates a condition that permits or brings into being the criminal actions that result in the
claimant's injury. Lefmark Mgmt. Co., 946 S.W.2d at 54 (citing Strakos v. Gehring, 360 S.W.2d 787 (Tex.
1962)). Whether a duty exists under either theory is a question of law. See Centeq Realty, Inc., 899 S.W.2d at
197.
DUTY
1. Unreasonable and Foreseeable Risk
Because Lawson's injuries resulted from the criminal conduct of a third party, Astroworld owed him no duty of
protection from an unreasonable and foreseeable risk unless Astroworld had the power of control over the
premises where the conduct occurred. See Timberwalk, 972 S.W.2d at 756; Tidwell, 867 S.W.2d at 21. Adam
Loredo, Astroworld's Safety and Risk Manager, stated in an affidavit that the area identified as the scene of
the assault had never been "owned, occupied, or controlled" by Astroworld, Six Flags Theme Parks, or any of
its affiliates or subsidiaries. See LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 566 (Tex.
App.--Houston [1st Dist.] 1988, no writ).
Appellants do not attempt to refute Astroworld's assertion and evidence that Astroworld did not own or control
the site of the assault. Appellants failed to raise a material fact issue as to whether Astroworld owed a duty of
protection from an unreasonable and foreseeable risk. See Timberwalk, 972 S.W.2d at 756.
2. Creation of Condition
Appellants assert that a landowner can be liable for injuries suffered by an invitee that occurred off the
landowner's property when the invitee: (1) was a minor; (2) was forced to leave the landowner's property when
the landowner knew or should have known that the invitee was in imminent risk of harm; and (3) had no safe
haven to which to retreat. Appellants claim that Astroworld created the dangerous condition by ejecting
Lawson from its premises after repeated incidents of violence had occurred at the park, in the waiting area,
and in the area within the immediate vicinity of the park.
Appellants have cited no authority, and we are aware of none, that would create a duty by Astroworld to be
responsible for the criminal acts of third parties merely because Astroworld failed to control a crowd of
unsupervised young people who had assembled on property that was not within its control. See, e.g., Randle
v. Stop N' Go Markets of Texas, Inc., 929 S.W.2d 17, 18-19 (Tex. App.--Houston [1st Dist.] 1996, no writ)
(business operator does not owe duty to protect customers against intentional third party acts committed off
business premises when initial, non-threatening contact occurred on property); Holcomb v. Randall's Food
Markets, Inc., 916 S.W.2d 512, 514-15 (Tex. App.--Houston [1st Dist.] 1995, writ denied); LaFleur, 751 S.W.2d
at 565. A business operator's duty cannot extend to off-site criminal acts by third parties when nothing in the
record shows that the people who assaulted the claimants had ever been on the defendant's property or had
any association with the defendant's property. See Randle, 929 S.W.2d at 18.
Here, there is no evidence that Lawson's assailants had ever been to Astroworld, had any association with
Astroworld, or were involved with the fighting at Astroworld earlier that day. Lawson had never seen his
assailants before the assault in the McDonald's parking lot. Appellants failed to raise a material fact issue as to
whether Astroworld created a condition that permitted or brought into being the criminal actions that resulted in
Lawson's injury. See Lefmark, 946 S.W.2d at 55.
NEGLIGENCE - OPERATION OF MOTOR VEHICLE | AVOIDING COLLISION | PROPER LOOKOUT
To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately
caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). Every motorist
has a duty to keep a proper lookout, but he is not required to anticipate negligence or other unlawful conduct
on the part of another. Lynch v. Ricketts, 158 Tex. 487, 491–92, 314 S.W.2d 273, 275 (1958). “[A] proper
lookout encompasses the duty to observe, in a careful and intelligent manner, traffic and the general situation
in the vicinity, including speed and proximity of other vehicles as well as rules of the road and common
experience.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler 1992, writ denied). We also
note that, in order to establish that a motorist’s negligence is a proximate cause of a collision, “there must be
facts in the evidence from which [a fact-finder could infer] that a proper lookout . . . would have alerted an
ordinary prudent person to danger at such time and distance that evasive action could have been taken in
order to prevent the accident.” Fannin v. Hall, 561 S.W.2d 952, 956 (Tex. Civ. App.—Tyler 1978, no writ); see
Montes v. Pendergrass, 61 S.W.3d 505, 510 (Tex. App.—San Antonio 2001, no pet.).
To impose liability for negligence, Pues must present evidence of a legal duty owed by one person to another,
a breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d
793, 794 (Tex. 2006). An employer has a duty to use ordinary care in providing a safe workplace. Id. It must,
for example, warn an employee of the hazards of employment and provide needed safety equipment or
assistance. Id. But an employer is not an insurer of its employees' safety. Id. It owes no duty to warn of
hazards that are commonly known or already appreciated by the employee and no duty to provide equipment
or assistance that is unnecessary to the job's safe performance. Jack in the Box v. Skiles, 221 S.W.3d 566,
568 (Tex. 2007) (per curiam); Kroger Co., 197 S.W.3d at 794. Moreover, when an employee's injury results
from performing the same character of work that employees in that position have always done, an employer is
not liable if there is no evidence that the work is unusually precarious. Kroger Co., 197 S.W.3d at 794.
Rapid Settlements Ltd. v. Allstate Settlement Corp. (Tex.App.- Houston [14th Dist.] Aug. 27, 2009)
(interlocutory order setting aside confirmation of arbitration award in bill of review not appeable)
DISMISSED : Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00394-CV Rapid Settlements LTD v. Allstate Settlement Corporation, Allstate Life Insurance
Company, and Andino Ward Appeal from County Civil Court at Law No 4 of Harris County
MORE CASE LAW ON NEGLIGENCE FROM HOUSTON COURTS OF APPEALS
Senko v. BP Products North America, Inc. (Tex.App.- Houston [1st Dist.] Nov. 4, 2009)(Keyes)
(motion for a new trial, summary judgment on claims for negligence, negligence per se, and intentional
infliction of emotional distress affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Alcala and Hanks)
01-08-01022-CV David Senko v. BP Products North America, Inc., and Don Parus
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss
To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately
caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Greater Houston Transp. Co.
v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a duty exists is a threshold inquiry and a question of
law; liability cannot be imposed if no duty exists. Kroger, 197 S.W.3d at 794; Van Horn v. Chambers, 970 S.W.
2d 542, 544 (Tex. 1998). “In determining whether the defendant was under a duty, the court will consider
several interrelated factors, including the risk, foreseeability, and the likelihood of injury weighed against the
social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the
consequences of placing the burden on the defendant.” Greater Houston Transp., 801 S.W.2d at 525.
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