henry-wallace-anf-of-henry-wallace-ii-angela-valley-anf-of ( 2005 )

Opinion issued December 1, 2005

  In The

Court of Appeals

For The

First District of Texas

---

NO. 01-04-00735-CV

---

HENRY WALLACE A/N/F OF HENRY WALLACE, II, ANGELA VALLEY A/N/F OF CHRISTOPHER THEUS, MARY HAMILTON A/N/F OF ROMEL HAMILTON AND MARCUS PATTON, Appellants

V.

JOE WYMER, WYMER ENTERPRISES, INC., MCDONALD’S CORPORATION AND SIX FLAGS THEME PARKS, INC., Appellees

---

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2003-37743

---

MEMORANDUM OPINION

          Appellants, minor boys, Henry Wallace II, Christopher Theus, Romel Hamilton, and Marcus Patton, through their next friends, Henry Wallace, Angela Valley, and Mary Hamilton, seek reversal of take-nothing summary judgment orders rendered against them in their negligence suit against appellees, Joe Wymer, Wymer Enterprises, Inc., McDonald’s Corporation (McDonald’s), and Six Flags Theme Parks, Inc. (Six Flags). Appellants contend that appellees should be held liable for personal injuries appellants received that were caused by unknown third parties while appellants were on or near appellees’ properties. In two points of error, appellants assert that the trial court erred by (1) rendering summary judgment orders on the ground that appellees negated the duty element of appellants’ negligence claim and (2) severing the claim of Steven Sylvester, appellants’ co-plaintiff, against Six Flags, from appellants’ claims. We affirm.

Factual Background

          On July 4, 2001, Wallace, Theus, Hamilton, Patton, and Sylvester, who is not a party to this appeal, went to Astroworld park. Two unknown people assaulted Sylvester while he was in the park. After the assault, Wallace, Theus, Hamilton, and Patton (hereafter “the four boys” or “appellants”) left Astroworld by exiting through its front gate. The four boys then walked through the drop-off zone to the sidewalk area, outside the gate, abutting the 610 highway. Somewhere between that area and McDonald’s, the four boys were approached by a gang of 50 or more boys and assaulted (hereafter “the first assault”). After the assault, the four boys continued towards McDonald’s restaurant, where they had planned to be picked up by Wallace’s parents. The four boys never entered the McDonald’s restaurant. Instead, they entered Wallace’s parents’ car at the McDonald’s parking lot. Their car exited the lot and entered the street, where it was struck by a car fleeing from an attack by several unidentified people who were among the crowd in the restaurant’s parking lot (hereafter “the second assault”).

Summary Judgment

          In point of error one, appellants contend that the trial court erred by ruling, as a matter of law in rendering summary judgment, that appellees did not owe a duty of ordinary care to protect appellants from the criminal acts of third parties.

          We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the standard of review for a traditional summary judgment, the moving party must establish that no material fact issue exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the claimant’s theories of recovery. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the defendant produces evidence warranting summary judgment, the plaintiff must present evidence that raises a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

          The essential elements of a negligence action are (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; and (3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d. 306, 311 (Tex. 1987). Duty is the threshold inquiry; a plaintiff must prove the existence and violation of a duty owed by the defendant to establish liability in tort. Id. Whether a duty exists is a question of law for the court to decide. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).

          As a general rule, no person has a legal duty to protect another from the criminal acts of a third person. Id. An exception to this rule, however, occurs when a person controls the premises. Id. A person who controls premises has 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. The exception applies to a person who “‘retains control over the security and safety of the premises.’” Id. This duty is commensurate with the right of control over the property. Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53-54 (Tex. 1997). A person who is not in control of the property at the time of the injury may nonetheless owe a duty to make the premises safe if that person has agreed to make safe a known dangerous condition of real property or if the person has created the dangerous condition. Id. at 54.

The First Assault that Occurred Near Astroworld

          Six Flags sought to obtain traditional summary judgment by negating the duty element of appellants’ negligence cause of action. To establish that no material fact issue existed and that it owed no duty to appellants, as a matter of law, Six Flags provided the affidavit of its safety representative, who attested that he had examined the area the four boys identified as the scene of the assault and that the location at issue had never been owned, occupied, or controlled by Six Flags. See LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 566 (Tex. App.—Houston [1st Dist.] 1988, no writ) (holding that summary judgment proof demonstrated that appellees had no interest in public street corner where LaFleur was injured and that proof therfore established that appellees had no right to control premises where third party assault occurred.).

          Appellants’ response, which we address in detail below, was insufficient to defeat Six Flags’s right to summary judgment. Appellants did not attempt to refute Six Flags’s assertion and evidence that it did not own or control the site of the assault.

          Appellants first contend that, as a matter of law, Six Flags falls within the exception to the general rule that a person has no legal duty to protect another from the criminal acts of a third person. Appellants argue that the exception, which requires premises owners to use ordinary care to protect invitees from criminal acts of third parties if the premises owner knows or has reason to know of an unreasonable and foreseeable risk to the invitee, applies to Six Flags. But the duty owed under this exception is to “protect others on the [landowner’s] property” from the risk. Timberwalk, 972 S.W.2d at 756 (emphasis added). Because the four boys seek to impose liability for acts that occurred outside Astroworld, the “knowledge of an unreasonable and foreseeable risk” exception does not impose a duty of care to protect Astroworld’s former invitees on property outside its possession, control, or both.

          Next, appellants assert that Six Flags owed them a duty because it created a dangerous situation. Although creation of a dangerous situation is a recognized exception to the general rule that a person has no duty toward others when the person has no control over the property, Lefmark Mgmt. Co., 946 S.W.2d at 53-54, Six Flags contends that the general rule concerning duty, rather than the exception, applies here. We agree with Six Flags. No evidence in the record shows that Six Flags created the allegedly dangerous condition of the crowd of unsupervised young people. And if the record had showed that, nothing in the record shows that the people who assaulted the four boys on the sidewalk near Astroworld had ever been on the Astroworld property or had any association with Astroworld’s property. Additionally, the four boys have cited no authority, and we are aware of none, that would create a duty by Six Flags to be responsible for the criminal acts of third parties merely because Six Flags failed to control a crowd of unsupervised young people who had assembled on property that was not within its control.  

          Appellants also assert that Six Flags failed to warn them of the risk of injury created by the high volume of public invitees and to alert them about past criminal activity. Proof of ownership is an essential element in a premises-defect case. Cameron County v. Velasquez, 668 S.W.2d 776, 781 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e). Six Flags’s safety manager’s affidavit negated the ownership element of appellants’ claim. In their response, appellants asserted that Six Flags posted no signs or warnings that would have alerted appellants about past violence or that informed parents that parental supervision was advised. Appellants attached no summary judgment evidence, however, to support these assertions. When there is no evidence that the defendant owned or exercised control over the site of the injury, there is no legal duty to warn about or eliminate the danger in question. Id. at 780-81. Thus, based on record in this case, the failure-to-warn doctrine is insufficient to defeat Six Flags’s motion for summary judgment. The trial court did not err in granting the take-nothing summary judgment in favor of Six Flags.

The Second Assault that Occurred Near McDonald’s Restaurant

          Appellees’ summary judgment evidence included an affidavit from a McDonald’s corporate representative, who stated that McDonald’s did not own the restaurant or control the activities of the restaurant where appellants alleged they sustained damages, and that the restaurant was instead owned by Wymer Enterprises. In their “Plaintiffs Response to Defendants McDonald’s Corporation and Six Flags Theme Parks, Inc.’s Motion for Summary Judgment,” appellants omitted any mention of Wymer or Wymer Enterprises, Inc.

          The undisputed evidence in the record shows that the McDonald’s corporate representative established that McDonald’s did not own the restaurant of which appellants complained and appellants’ response contained no summary judgment evidence to create an issue of fact regarding McDonald’s possession or control of the restaurant in question. Moreover, appellants’ brief assigns no error to the trial court’s grant of summary judgment to Wymer or Wymer Enterprises, Inc.

          We conclude the trial court did not err in granting summary judgment. We overrule appellants’ first point of error.

Severance

          In point of error two, appellants and Sylvester assert that the trial court erred by severing Sylvester’s claim against Six Flags from all other claims. Specifically, they assert that the severance of Sylvester’s claim places undue hardship on him by giving him two lawsuits instead of one to pursue: (1) this appeal and (2) his claim in the trial court against Six Flags.

          The record shows that the trial court granted the summary judgment motions that pertained to the four boys’ causes of action in favor of appellees, and severed the four boys’ causes of action from Sylvester’s claims. After the severance, Sylvester’s case remained pending in the trial court. Sylvester is not a party to this appeal.  

          Appellants lack standing to advance the argument that Sylvester would be injuriously affected by the severance because they have made no showing that the severance might injuriously affect them. See The Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) (“[A]n appealing party may not complain of errors that do not injuriously affect it or merely affect the right of others.”).

Discovery

          Appellants also complain that, because Six Flags and McDonald’s had not responded properly to discovery, and because discovery was not complete, evidence was not available that would create issues of material fact and establish the elements of appellants’ case.

          A party who contends that it has not had adequate opportunity for discovery before a summary judgment hearing must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 647 (Tex. 1996). Because appellants did neither, they did not preserve error regarding this complaint. Tex. R. App. P. 33.1(a). Furthermore, we cannot consider the items in the appendices to appellants’ brief because they are not a part of the appellate record. Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 245n.3 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

Conclusion

          We affirm the judgment of the trial court.

                                                                                  Elsa Alcala

                                                                                  Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.