Michael Henderson v. CC-Parque View, LLC D/B/A Parque View Apartments, Asset Plus Corporation, Asset Plus Companies, LP, Asset Plus Realty Corporation, and Asset Plus USA, LLC ( 2017 )


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  • Opinion issued May 18, 2017
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-16-00949-CV
    ———————————
    MICHAEL HENDERSON, Appellant
    V.
    CC-PARQUE VIEW, LLC D/B/A PARQUE VIEW APARTMENTS,
    ASSET PLUS CORPORATION, ASSET PLUS COMPANIES, LP,
    ASSET PLUS REALTY CORPORATION, AND ASSET PLUS USA, LLC,
    Appellees
    On Appeal from the 190th District Court
    Harris County, Texas
    Trial Court Case No. 2015-52958-A
    MEMORANDUM OPINION
    An independent-contractor security guard shot Michael Henderson with a
    rubber bullet during an early morning encounter in the parking lot of Henderson’s
    apartment complex. Henderson sued his landlord, Parque View Apartments, its
    management companies, and Ranger Guard and Investigations, the security
    company that had contracted to provide security services at Parque View.
    Henderson claims that Parque View and its management (“Parque View”) breached
    (1) a duty of care in hiring and retaining the Ranger Guard that shot him and (2) a
    duty to notify apartment residents that security would be patrolling the property.
    Parque View moved for summary judgment on traditional grounds,
    contending that: (1) Ranger Guard was an independent contractor over which it
    exercised no control, and thus Parque View owed no duty to Henderson with respect
    to Ranger Guard’s activities; and (2) Parque View had no duty to warn Henderson
    of the presence of armed security at the complex. The trial court granted Parque
    View’s motion. The trial court severed the summary judgment from the remaining
    claims against Ranger Guard and Henderson appeals, challenging the propriety of
    the summary judgment on both grounds. We affirm.
    Background
    Parque View is a 352-unit apartment complex located in Harris County near
    the Texas Medical Center. Responding to reports of increased criminal activity in
    the area, Parque View contracted with Ranger Guard to provide private security
    services for the apartment complex. The contract between Parque View and Ranger
    Guard declares that “Ranger Guard and Investigations is an independent contractor
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    of [Parque View].” Ranger Guard warrants that its services “shall be performed by
    personnel possessing competency consistent with applicable industry standards,”
    who are required to be licensed and pass screening for sex offender status, criminal
    history, and drug use.
    The contract further provides that Parque View “may, with the approval of
    Ranger Guard . . . issue written directions within the general scope of Security
    Services to be ordered. Such changes . . . may be for additional work or Ranger
    Guard . . . may be directed to change the direction of work covered by the Task
    Order, consistent with all applicable laws, but no change will be allowed unless
    agreed to by Ranger Guard . . . in writing.” The record contains no allegation or
    evidence of any change made pursuant to this provision.
    Ranger Guard assigned Dameon Roberson, who had been working for Ranger
    Guard since 2011, to provide the security services at Parque View. Roberson is a
    state-commissioned security officer. Roberson provided Ranger Guard with daily
    shift reports and lengthier incident reports when necessary to keep Ranger Guard
    informed of specific encounters that went beyond routine surveillance activities. He
    also provided copies of these reports to Parque View. For the several weeks
    preceding the September 2013 incident involving Henderson, Roberson reported:
     An occasion in which he “presented himself with arms” to the driver of
    a truck who was aggressively attempting to enter through an exit gate
    that was triggered open by a resident who was attempting to leave.
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     An early-morning encounter with a resident that occurred when
    Roberson responded to a siren sounding in the parking lot. The resident
    refused to identify himself to Roberson and yelled and cursed at
    Roberson. Roberson approached the tenant with a telescopic baton in
    hand, and the resident retreated up the stairs and into his apartment.
    Roberson notified local police of the incident.
     An evening incident in which Roberson confronted an individual
    suspected for manually pulling the motorized exit gate open after
    having been instructed not to do so. Roberson displayed his stun baton,
    whereupon the individual left the property, identified as a resident, then
    was allowed to enter through the pedestrian gate.
    During the same period, a few residents complained to the apartment management
    office that Roberson spoke rudely or “coarsely” to them. On two occasions,
    residents who apparently were unaware that security was patrolling the premises
    contacted local police to report uniformed individuals whom they believed were
    impersonating officers on the premises. Parque View, which believed it had
    previously taped notices to the residents’ doors concerning the new security
    arrangements, did so again after these police reports occurred.
    In the early hours of September 12, 2013, Henderson, a complex resident,
    pulled into the parking lot. Roberson noticed the car sitting in the lot while the driver
    remained inside. He approached Henderson’s car and shined a flashlight into the
    driver’s-side window.      Roberson instructed Henderson to get out of the car.
    Henderson, however, remained in his car. Roberson then aimed a gun at Henderson
    4
    and insisted that he get out of the car. Henderson got out of the car and entered into
    a discussion with Roberson. The parties dispute how each behaved during that
    discussion. At some point, Roberson discharged his gun, shooting Henderson in the
    abdomen with a rubber bullet. Henderson sustained injuries, for which he received
    medical treatment. He continues to require medical treatment, medication, and
    physical therapy.
    The trial court’s summary judgment recites that Ranger Guard and Roberson
    were independent contractors of [Parque View] and, as such, [Parque
    View] owed no duty to the Plaintiff with regard to any negligence of
    Ranger Guard or Roberson. Because [Parque View] had no duty as to
    the Plaintiff relating to the activities of its independent contractors, they
    are entitled to judgment as a matter of law.
    DISCUSSION
    I.    Standard of Review and Applicable Law
    We review summary judgments de novo. Travelers Ins. Co. v. Joachim, 
    315 S.W.3d 860
    , 862 (Tex. 2010). For a traditional motion for summary judgment like
    this one, the movant bears the burden to show that no genuine issue of material fact
    exists and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.
    166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 
    289 S.W.3d 844
    ,
    848 (Tex. 2009). The defendant moving for traditional summary judgment must
    conclusively negate at least one essential element of each of the plaintiff’s causes of
    action or conclusively establish each element of an affirmative defense.              Sci.
    5
    Spectrum, Inc. v. Martinez, 
    941 S.W.2d 910
    , 911 (Tex. 1997). We review the
    summary-judgment evidence in a light favorable to the nonmovant, crediting
    evidence favorable to the nonmovant if reasonable jurors could, and disregarding
    contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v.
    Tamez, 
    206 S.W.3d 572
    , 582 (Tex. 2006); see also Valence Operating Co. v.
    Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005) (first citing Provident Life & Accid. Ins.
    Co. v. Knott, 
    128 S.W.3d 211
    , 215 (Tex. 2003); and then citing 
    Martinez, 941 S.W.2d at 911
    ).
    Both of the issues on appeal concern whether Parque View owed a legal duty
    to its residents. The existence of a duty is a question of law for the court to decide
    from the particular facts of the case. Golden Spread Council, Inc. No. 562 of Boy
    Scouts of Am. v. Akins, 
    926 S.W.3d 287
    , 289 (Tex. 1996) (citing Greater Houston
    Transp. Co. v. Phillips, 
    801 S.W.2d 523
    , 525 (Tex. 1990)). In deciding whether to
    impose a duty, we weigh several interrelated factors, including the risk,
    foreseeability, and likelihood of injury; the social utility of the actor’s conduct; the
    magnitude of the burden of guarding against the injury; the consequences of placing
    the burden on the defendant; and whether one party had superior knowledge of the
    risk or a right to control the actor who caused the harm. 
    Id. at 289–90
    (citing Graff
    v. Beard, 
    858 S.W.2d 918
    , 920 (Tex. 1993)).
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    II.   Duty of Care in Retaining an Independent Contractor
    Henderson acknowledges that Texas law does not impose liability on an
    employer for an independent contractor’s tortious conduct unless the employer
    retains some control over the manner in which the contractor performs the work or
    the work itself involves a nondelegable duty, whether inherently dangerous or
    statutorily prescribed. Fifth Club, Inc. v. Ramirez, 
    196 S.W.3d 788
    , 795 (Tex. 2006).
    Henderson does not allege that Parque View retained any control over any of the
    details of Ranger Guard’s work, and the contractual language does not allow any
    control without Ranger Guard’s written approval. Accordingly, this rule precludes
    Parque View from being held vicariously liable for the conduct of Ranger Guard or
    its employees as a matter of law. Henderson further claims, however, that Parque
    View should be held directly liable for its own negligence in retaining the services
    of an allegedly incompetent security contractor.
    As the basis for imposing a direct duty on Parque View for Roberson’s
    conduct, Henderson points to the Texas Supreme Court’s decision in Fifth Club, Inc.
    v. Ramirez, 
    196 S.W.3d 788
    (Tex. 2006). In Fifth Club, a patron sued a nightclub
    for injuries that he sustained as a result of an altercation with an off-duty peace
    officer whom the club had hired as an independent contractor to provide security
    services. 
    Id. at 790.
    The plaintiff asked the Court to recognize a personal character
    exception, recognized in some other jurisdictions, to hold employers or premises
    7
    owners directly liable for the acts of their independent contractors in the security
    context. 
    Id. at 792–94.
    The Court declined to recognize a personal character exception. 
    Id. at 796.
    It
    noted that the Texas Legislature has not recognized a nondelegable duty recognized
    by the jurisdictions adopting such an exception, those being (1) a state-imposed
    nondelegable or personal duty to keep business premises safe, and (2) an articulated
    public policy that business owners should not benefit from an independent
    contractor’s surveillance or protection of their property without also incurring
    liability for that contractor’s unlawful conduct. 
    Id. at 794–95.
    Although it rejected recognition of an exception to the general rule that an
    owner or general contractor is not liable for the actions of an independent contractor
    over whom it exercises no control, the Court acknowledged that a “plaintiff could,
    and did, sue the nightclub alleging direct liability for negligent hiring.” 
    Id. at 796.
    Henderson relies on this acknowledgment as the basis for his negligent retention
    claim against Parque View.
    Fifth Club’s consideration of the plaintiff’s negligent hiring claim, however,
    does not support the theory that Henderson advances. In Fifth Club, the nightclub
    hired the individual officer as an independent contractor without performing a
    background check, requiring a job application, or interviewing him directly. 
    Id. The Court,
    observing that the officer’s status as a certified peace officer qualified him
    8
    for the security work, concluded that the plaintiff’s evidence was legally insufficient
    to support a finding that the club was negligent in hiring or retaining the officer. 
    Id. at 797.
    Contrary to Henderson’s suggestion, the Fifth Club Court did not impute
    any nondelegable duty of care to an employer to ensure that an independent
    contractor properly performs the details of the work for which it was contracted. See
    
    id. at 796;
    see also Redinger v. Living, Inc., 
    689 S.W.2d 415
    , 418 (Tex. 1985)
    (explaining that when negligence arises out of activity being performed under
    contract, duty to see that work performed in safe manner belongs to independent
    contractor and not party who hired independent contractor) (citing Abalos v. Oil Dev.
    Co. of Tex., 
    544 S.W.2d 627
    , 631 (Tex. 1976)); Motloch v. Albuquerque Tortilla
    Co., 
    454 S.W.3d 30
    , 33 (Tex. App.—Eastland 2014, no pet.) (same) (citing
    
    Redinger, 689 S.W.2d at 418
    ).
    Henderson’s reliance on Davis-Lynch, Inc. v. Asgard Techs., LLC, 
    472 S.W.3d 50
    (Tex. App.—Houston [14th Dist.] 2015, no pet.), is similarly misplaced.
    That case dealt with a staffing company that had contracted with an oilfield
    manufacturer. 
    Id. at 57.
    The staffing company placed an administrative employee
    with the manufacturer as a receptionist. 
    Id. Eventually, the
    manufacturer promoted
    her to head of accounting. 
    Id. She was
    discovered to have embezzled over $15
    million. 
    Id. at 58.
    The manufacturer sued the staffing company for negligent hiring
    based on its failure to perform a criminal background check on the employee, who
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    had two prior misdemeanor theft charges, one that resulted in a conviction and the
    other a deferred adjudication. 
    Id. Our sister
    court held that the staffing company could not have foreseen that
    its placement of the employee as a receptionist for the manufacturer would create a
    risk of harm to others because of her employment duties. 
    Id. at 67.
    The court also
    observed that after the manufacturer transferred the employee to another position in
    the accounting department, the parties’ contract no longer required the staffing
    company to supervise her. 
    Id. at 66.
    After the transfer, the manufacturer gained the
    exclusive right to control the employee’s work and thus, the staffing company could
    not be sued by the manufacturer under a respondeat superior theory. 
    Id. at 71.
    The shift in control from the staffing company to the manufacturer makes
    Davis-Lynch inapposite to this case. Here, no such shift occurred: At all times,
    Roberson remained an employee of Ranger Guard and at no time did Parque View
    assume control over any of the details of Roberson’s work.
    Although Henderson points to incident reports relating interactions with other
    tenants, none of them involved violence or violation of the law. None of the
    evidence presented in the summary judgment records demonstrates that Parque View
    was aware that Roberson presented an unreasonable risk of harm to the public. See
    Fifth 
    Club, 196 S.W.3d at 796
    –97. The security guard in Fifth Club, Officer West,
    had been reprimanded for using profanity, but the Texas Supreme Court concluded
    10
    that nothing in hiring West demonstrated to the property owner that West presented
    a risk of harm to the public:
    As to negligence in hiring, the evidence indicates that even if Fifth Club
    had investigated West before hiring him, nothing would have been
    found that would cause a reasonable employer to not hire West . . . The
    evidence showed that West violated a requirement in the applicable
    peace officer manual by accepting employment at the club, and that his
    primary employer had reprimanded West for the use of a profanity to a
    member of the public. This evidence is not sufficient to have put Fifth
    Club on notice that hiring West would create a risk of harm to the
    public, even if Fifth Club had done a background check.
    
    Id. (internal citation
    omitted). For the same reason, the court concluded that the
    owner was not liable for negligently retaining its independent contractor:
    [N]o evidence was presented that West was an incompetent or unfit
    security guard such that Fifth Club was negligent in retaining him after
    he was hired. Fifth Club hired West as a security guard to assist in
    protecting its property and patrons, a job specially suited to a trained
    peace officer . . . there was no conflicting evidence that he was unfit for
    the security position prior to the incident in question.
    
    Id. at 797
    (internal citation omitted).        Henderson presents evidence—coarse
    language and rudeness—rejected as evidence supporting a negligent retention claim
    for the independent contractor in Fifth Club.         
    Id. Ranger Guard
    warranted
    Roberson’s qualifications for providing security services under the contract,
    including that Roberson was a certified security guard. Ranger Guard supervised
    Roberson’s work at the apartment complex. Parque View was entitled to rely on
    Ranger Guard’s warranty and supervision. 
    Redinger, 689 S.W.2d at 418
    (rejecting
    duty to see independent contractor’s work performed in safe manner). Accordingly,
    11
    we hold that the trial court properly granted Parque View’s motion for summary
    judgment on Henderson’s claim for negligent hiring and retention of the
    independent-contractor security guard.
    III.   No Duty to Notify Residents of Security Presence at Parque View
    Henderson next contends that Parque View is liable for negligently failing to
    warn him of the presence of armed security guards at the complex.
    A landowner who exercises control over the premises must use reasonable
    care to make the premises safe for the use of business invitees. Lefmark Mgmt. Co.
    v. Old, 
    946 S.W.2d 52
    , 53 (Tex. 1997). Stemming from this duty as well is the
    concomitant duty to warn invitees of hidden dangers presenting an unreasonable risk
    of harm. Henderson invites us to recognize that an apartment owner owes a duty to
    adequately warn its tenants of the presence of armed security on the premises. See
    
    id. In advocating
    for this duty of notice, Henderson points to evidence indicating
    that some tenants were not aware that armed security personnel were patrolling the
    premises.
    In Ross v. Texas One Partnership, the Dallas Court of Appeals refused to
    recognize such a duty, concluding that premises owners should be able to hire
    independent contractors to provide armed security services for protecting their
    property without risking exposure to automatic liability for the negligent discharge
    of firearms by the independent contractor’s employees. 
    796 S.W.2d 206
    , 215 (Tex.
    12
    App.—Dallas 1990, writ denied). In Ross, the plaintiff sued the owner of an
    apartment complex after he was shot by a security guard who was patrolling the
    complex. 
    Id. at 209.
    As an exception to the general rule that a party cannot be held
    liable for harm caused by its independent contractor, the plaintiff posited that the
    hiring party be held liable for injuries caused by its independent contractor’s failure
    to exercise the nondelegable duty of care in performing work that is inherently
    dangerous. 
    Id. at 214–15.
    The Ross court, however, concluded that the work
    undertaken by the security company in that case was not inherently dangerous work.
    
    Id. at 215.
    Texas precedent weighs against adopting an affirmative duty of notice in this
    case. Texas recognizes that premises owners or controllers owe a duty to use
    ordinary care to protect invitees from criminal acts of third parties if the owner
    knows or has reason to know of an unreasonable and foreseeable risk of harm to the
    invitee. See Timberwalk Apts., Partners, Inc. v. Cain, 
    972 S.W.2d 749
    , 756 (Tex.
    1998); Nixon v. Mr. Prop. Mgmt., 
    690 S.W.2d 546
    , 550 (Tex. 1985). In this case,
    Parque View was aware of an upsurge in criminal activity in the area, and it retained
    security services in order to protect the property and its tenants. The policy choice
    implicit in the rule recognized in Timberwalk and subsequent cases permits premises
    owners to undertake reasonable measures, such as contracting with a security
    service, to preserve a premise’s safety from criminal activity without at the same
    13
    time being accused of creating a hidden danger. Henderson did not adduce evidence
    that the possession of the gun with rubber bullets was unlawful or unlicensed or that
    Parque View had any knowledge of any unlawful or unlicensed activity that caused
    the incident in question. Because Henderson has not demonstrated that Parque View
    knew or should have known that Roberson’s activities on its premises were
    inherently dangerous, we hold that the trial court correctly concluded that Parque
    View was entitled to judgment as a matter of law on Henderson’s failure-to-notify
    claim. See Fifth 
    Club, 196 S.W.3d at 795
    ; 
    Ross, 796 S.W.2d at 215
    .
    CONCLUSION
    We affirm the judgment of the trial court.
    Jane Bland
    Justice
    Panel consists of Justices Keyes, Bland, and Huddle.
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