Law-negligence cause of action | tort liability | duty owed by defendant to plaintiff |
ELEMENTS OF NEGLIGENCE
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). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence
at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The nonexistence of a duty ends the inquiry into
whether negligence liability may be imposed.” Van Horn, 970 S.W.2d at 544. Generally, no duty exists to take
action to prevent harm to others absent certain special relationships or circumstances. Torrington Co. v.
Stutzman, 46 S.W.3d 829, 837 (Tex. 2000).
The elements of a negligence claim are: (1) breach of (2) a legal duty owed to another, and (3) damages
proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Proximate cause
requires cause in fact and foreseeability; harm is foreseeable if a person of ordinary intelligence should have
anticipated the danger her negligence created for others. Id. (quoting El Chico Corp. v. Poole, 732 S.W.2d 306,
313 (Tex.1987)).
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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