Kimberly T. Daniels and Willie Daniels v. Christopher A. Yancey, M.D., and Diagnostic Clinic of Longview, P.A. ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00010-CV

______________________________

KIMBERLY T. DANIELS AND WILLIE DANIELS, Appellants

 

V.

 

CHRISTOPHER A. YANCEY, M.D., AND

DIAGNOSTIC CLINIC OF LONGVIEW, P.A., Appellees

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On Appeal from the County Court at Law

Gregg County, Texas

Trial Court No. 2002-2120-B

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            Kimberly T. and Willie Daniels appeal from a take-nothing judgment in favor of Christopher A. Yancey, M.D., and Diagnostic Clinic of Longview, P.A (collectively, Yancey). The Danielses complain on appeal that the trial court erred in excluding certain testimony from the jury's consideration. We deny all points of error and affirm the judgment of the trial court.

Factual Background

            Dr. Christopher Yancey performed a hysterectomy on Kimberly Daniels. Following the surgery, Kimberly began to suffer from abdominal pain and bowel problems. She returned to the hospital. Dr. Lee Merritt, in consultation with Dr. Yancey, determined that it was necessary to remove a section of Kimberly's small intestine to cure her affliction. This surgery, in turn, caused Kimberly further medical problems.

            The Danielses allege that Dr. Yancey perforated Kimberly's small intestine during the hysterectomy, thereby breaching the proper standard of care. The Danielses claim that this alleged breach of duty caused Kimberly's subsequent medical problems. This claim is the basis of the underlying lawsuit.

Issues

            The trial court prohibited the Danielses' expert witness, Dr. Robert Kovac, from testifying about his observations regarding certain pathology slides relating to Kimberly's surgery. Dr. Kovac is a member of the American Board of Obstetrics and Gynecology. The trial court also excluded testimony regarding a statement purportedly made by Dr. Merritt to Kimberly before the second surgery. These two rulings by the trial court form the basis of the Danielses' appeal.

Motion to Limit Testimony

            The Danielses assert that the trial court erred in granting Yancey's motion to limit the testimony of Dr. Kovac because the motion was untimely. In support of this, the Danielses contend the motion was not filed within the time limitations prescribed by the former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(e). See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, Tex. Gen. Laws 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, Tex. Gen. Laws 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.401(e) (Vernon 2005)). We hold that the Danielses failed to raise this issue at the trial court level and thereby waived any possible error on appeal.

            As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a). The record must also show that the trial court ruled or refused to rule on the complaint. If the trial court refused to rule on the complaint, the record must show that the complaining party objected to the refusal. Id.

            It is clear from the record that, within the motion to limit expert testimony, and during the hearing on the motion, there was but one issue in contention: whether the Danielses' expert witness, Dr. Kovac, was qualified to testify about pathology slides.

            Dr. Yancey, the proponent of the motion, began the hearing by stating, "The basis of our motion is Broders v. Heise, the well-settled law of this state through the Texas Supreme Court, asking that expert witnesses be limited in medical malpractice cases to testify in their area of specialty." Yancey argued that, "Dr. Kovac is not now nor has he ever been even board eligible." Yancey went on to say, "[H]e doesn't even read his own patients' Pap smears . . . . [N]o one in a medical setting, has ever asked Dr. Kovac to review pathology slides and write a report for them, because they know that he's not qualified to do that." Yancey finished the argument by declaring, "[W]e would ask that his testimony be limited only to obstetrics and gynecology, the area in which he has been proven an expert witness."

            The Danielses, opposing the motion, focused the argument squarely on Dr. Kovac's credentials as well. The Danielses began, "[U]nder the Rules of Evidence, testimony by experts should be based upon their qualifications by knowledge, skill, experience, training or education; Rule of Evidence 702."

            The court interjected, "[W]hen you have an expert who -- an OB/GYN who doesn't even read his own Pap smear slides, tell me why I should give him an area of expertise in front of a jury."

            The Danielses continued to point out Dr. Kovac's qualifications, "Dr. Kovac teaches residents about pathology slides including bowel." The Danielses directed the trial court to deposition testimony in which Dr. Kovac described his qualifications. However, the Danielses failed to mention, even once, the time limits imposed by Article 4590i.

            The only brief reference to the time limitations of Article 4590i was by counsel for Yancey, the proponent of the motion to limit the testimony. However, this is analogous to the well-established rule that one party may not use another party's objection to preserve an error where the record does not reflect a timely expression of an intent to adopt the objection. Scott Fetzer Co. v. Read, 945 S.W.2d 854, 871 (Tex. App.—Austin 1997), aff'd, Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998).

            Further, the trial court made it clear that it was ruling solely on the qualifications of Dr. Kovac and not on any other issue. During the hearing, the trial court stated, "[M]y consideration is limited to his area of expertise as far as being able to testify about these pathology slides." The trial court even gave the Danielses the opportunity to present an alternative argument by stating, "And at this point, unless you have something else to show me, I'm going to grant the defendant's request and limit his testimony on the pathology." The Danielses never presented another argument to the trial court.

            Before issuing its ruling, the trial court again focused on Dr. Kovac's qualifications, saying, "[F]or specialty testimony, it looks to me that they have to basically be engaged in that as their specialty, such as, in this case, pathology." And on issuing its ruling, the trial court stated, "[M]y ruling is going to be that I'm going to limit his testimony and that he's not going to be able to go into -- unless the door is opened, he's not going to be able to go into the pathology slides."

            There is nothing in the record to indicate the trial court was presented with, or considered, the contention that the Danielses now assert on appeal. The Danielses never filed a response to Yancey's motion to limit the testimony of Dr. Kovac. At the hearing on the motion, Daniels never complained or objected that the motion was in violation of statutory time limits. In fact, during that hearing, the Danielses' counsel stated, "I do not question defense's ability to challenge the credibility of my expert based on his knowledge, training and experience . . . ." Because the Danielses failed to present this complaint to the trial court, this issue is waived and we will not consider it.

            Alternatively, the Danielses assert that the motion was not filed within the time limitations prescribed by the parties' agreed scheduling order. That agreed order set October 10, 2003, as the deadline to file any motion to exclude or limit expert testimony and November 10, 2003, as the trial date. Yancey's motion was not filed until January 7, 2004.

            On November 6, 2003, both parties filed an agreed motion for continuance. The trial court then reset the trial date to January 12, 2004.

            The agreed motion for continuance expressly mentioned Dr. Kovac's review of the pathology slides and his new opinions based on that review. The motion's stated purpose was to provide extra time for further discovery on that issue and other issues, and to extend the deadline for mediation, as well as other matters. Therefore, one of the purposes of the agreed motion for continuance was to allow discovery after the deadlines previously imposed by the agreed scheduling order.

            Further, several courts have held that a trial resetting has the effect of nullifying a deadline set by a scheduling order. See J.G. v. Murray, 915 S.W.2d 548, 550 (Tex. App.—Corpus Christi 1995, no writ). Thus, the continuance effectively nullified the deadlines set by the agreed scheduling order.

            Dr. Yancey's motion could not have violated the deadlines set by the agreed scheduling order because it was filed after those deadlines ceased to exist. Accordingly, we dismiss the Danieless' assertion that Yancey's motion was not filed within the time limitations prescribed by the agreed scheduling order and deny the Danielses' first point of error.

Qualifications of Expert Witness

            While Dr. Kovac testified extensively, the Danielses assert the trial court erred in ruling that Dr. Kovac was not qualified to testify as an expert concerning pathology slides. At issue were Dr. Kovac's conclusions based on his review of pathology slides of Kimberly's bowel. We hold that the trial court did not err in limiting Dr. Kovac's testimony, and we deny the Danielses' second point of error.

            The determination of whether an expert witness is qualified to testify is left largely to the trial court's discretion, and we will not disturb it on appeal absent a showing that the court abused its discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). In determining whether an abuse of discretion occurred, we look to see whether the trial court acted without reference to guiding principles or rules. Robinson, 923 S.W.2d at 558. A reviewing court cannot conclude that a trial court abused its discretion merely because it would have ruled differently. Id.; Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 932 (Tex. App.—Texarkana 1997, writ denied).

            The proponent of the expert witness bears the burden of showing that the expert witness is qualified and that the testimony is relevant to issues in the case, based on a reliable foundation, and will assist the trier of fact. Robinson, 923 S.W.2d at 556. The offering party is required to establish that the expert has the knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153. In addition, the underlying foundation on which that opinion is based must be reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Robinson, 923 S.W.2d at 555.

            Yancey contends that the Danielses failed to present any evidence to the trial court before or during trial that would support Dr. Kovac's qualifications, thereby waiving appeal of this issue. We disagree that this issue was waived, but find the trial court did not abuse its discretion in excluding Dr. Kovac's testimony regarding pathology slides.

            At the time the motion to limit Dr. Kovac's testimony was presented to the trial court before the trial started, the trial court reviewed and considered deposition testimony from Dr. Kovac on this issue. That evidence showed that Dr. Kovac at times reviewed pathology slides, that it was his pattern to review a slide of the bowel in the course of gynecologic surgery, and that he usually reviewed the slides with a physician who was board certified in gynecologic pathology. During the trial, the Danielses offered, and the trial court excluded, a report written by Dr. Kovac opining that the pathology slides of Kimberly confirmed his previous belief that the hysterectomy was unnecessary and that an unrecognized bowel perforation led to the removal of a substantial amount of her small bowel. Even though the Danielses presented some evidence of Dr. Kovac's qualifications to interpret pathology slides and therefore the issue was not waived, the evidence on that subject was very abbreviated. When the report of Dr. Kovac was offered and excluded, his curriculum vitae had also been admitted into evidence, but it did not contain specific information regarding pathology credentials. Dr. Kovac may be qualified to interpret pathology slides. However, based on the record before the trial court as summarized above, the trial court acted within its discretion in finding that the evidence was inadequate to establish that Dr. Kovac had the requisite knowledge, skill, experience, training, or education regarding the interpretation of pathology slides to qualify him to give an opinion on that specific subject. See Broders, 924 S.W.2d at 153.

            Even if the testimony of Dr. Kovac was improperly excluded, we do not believe that such an error would be harmful. "No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a)(1).

            The Danielses argue that the exclusion of Dr. Kovac's testimony concerning the pathology slides resulted in the "exclusion of Appellants' only witness to the issue of causation of a bowel perforation . . . ." We disagree. Dr. Kovac testified at length concerning his opinion that a bowel perforation occurred during Dr. Yancey's surgery of Kimberly. An excerpt of that testimony follows:

A.I strongly believe that there was a hole that was in the intestine of this -- was made which caused her subsequent problems.

 

Q. You think the hole occurred during Dr. Yancey's surgery?

 

A. I think it did.

Dr. Kovac further testified that the adhesion disease and obstruction and the necessity to remove fifty centimeters of Kimberly's small bowel were due to an unrecognized perforation of the small bowel at the time of the hysterectomy, which caused leaking into the abdominal cavity. He further stated that, at the time of the surgery to remove part of the intestine, Dr. Yancey and Dr. Merritt opened the intestine looking for a perforation. This evidence was utilized by the Danielses' counsel in his argument to the jury when he stated that puncturing of the bowel was a breach of the standard of care. The only limitation placed on Dr. Kovac's testimony was that he was not allowed to interpret the pathology slides.

            Considering all the evidence from Dr. Kovac that was admitted, even if the limitation of Dr. Kovac's testimony was error, we do not find that such limitation "probably caused the rendition of an improper judgment." See id. Accordingly, we deny the Danielses' second point of error.

Exclusion of Hearsay Testimony

            The Danielses asserts that the trial court erred in excluding certain testimony from Yancey's witness, Dr. Merritt. We hold that the trial court did not err in excluding the testimony.

            The Danielses' counsel sought to ask Dr. Merritt whether he had told Kimberly, "Dr. Yancey is scared to death that he's done something wrong to you." The trial court prohibited the Danielses from introducing the statement. The court held that the statement was hearsay and no exception to the hearsay rule applied.

            The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Thus, we review this issue under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).

            The Danielses' only argument at trial, and now on appeal, is that the statement is not hearsay, or that if it is hearsay, it falls within the "present sense impression" exception to the hearsay rule. See Tex. R. Evid. 803(1). Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The trial court could have reasonably found that the statement at issue was being offered to prove the truth of the matter asserted—that Dr. Yancey was afraid he had done something wrong to Kimberly.

            One of the exceptions to the hearsay rule is for present sense impressions. A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Tex. R. Evid. 803(1). The rationale for the exception stems from the statement's contemporaneity. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992). Without probative evidence in the record which establishes the amount of time between Dr. Merritt's statement and his meeting with Dr. Yancey, we cannot conclude that the statement falls within this exception. See 1.70 Acres v. State, 935 S.W.2d 480, 489 (Tex. App.—Beaumont 1996, no writ). The Danielses point us to no such evidence, nor can we find any in the record, which would establish the contemporaneity of Dr. Merritt's statement.

            Even if such evidence was present in the record, it is not clear how Dr. Merritt's statement would fit within this particular exception to the hearsay rule. Therefore, we cannot conclude the trial court abused its discretion in finding that the statement did not meet the requirements of the present sense impression exception to the hearsay rule. Accordingly, we deny the Danielses' final point of error.

            Having denied all of the Danielses' points of error, we affirm the judgment of the trial court.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          September 6, 2005

Date Decided:             October 25, 2005

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On Appeal from the 173rd Judicial District Court

Henderson County, Texas

  Trial Court No. 2008-A-875

 

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                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                    Opinion by Chief Justice Morriss

                                                                   O P I N I O N

 

            Driving home from a “pasture party” at which she had consumed alcohol, seventeen-year-old Brandi Christina Ross was tragically killed in an automobile accident.  The party had been held, without permission, in Henderson County,^[1] on a fifty-six-acre tract of land owned by Ryan C. Hoerauf.

            Following Brandi’s death, Julie Hyde and Chris Ross, individually and as representatives of the estate of Brandi, collectively referred to herein as Hyde, filed a wrongful death and survival action asserting negligence and gross negligence against multiple parties,^[2] including Hoerauf and various entities to which Hoerauf had connections, collectively referred to herein as Hoerauf. Hoerauf filed a motion for summary judgment, to which Hyde replied.  From a summary judgment granted in favor of Hoerauf, Hyde appeals.

            We must determine whether an absent landowner owes a duty to a trespasser who is injured or killed after leaving the landowner’s land.  Because Hoerauf owed no legal duty with respect to the off-premises accident, we affirm the summary judgment of the trial court.

            While Hoerauf owned the property where the pasture party had taken place, no one at the party was associated with Hoerauf or any related entity.  It is undisputed that the attendees of the party—students and former students of Kemp High School—were drinking alcohol.  The only “adults” at the party were in their early twenties, all former Kemp High School students.  Previous pasture parties had taken place at different locations on Hoerauf’s property during the summer months.  None of the partygoers had permission to be on the property, described as being “out in the middle of nowhere.”^[3]  Party attendees cut the fence to the Hoerauf property on at least two different occasions in order to gain access to the property.

            Hoerauf was aware, before the party that immediately preceded Brandi’s death, that his fence had been cut on two occasions and that there were tire tracks, empty beer containers, and remnants of bonfires on his property.  Hoerauf was not aware that the trespassers were teenagers.  After having twice repaired the cut fence, Hoerauf began construction of heavy duty fencing for the entire fifty-five acres.^[4]  In the midst of this re-fencing process,^[5] the fateful party took place.  At the time, Hoerauf, who lives in Odessa, was not aware that his land was being used for an unauthorized gathering.  Neither Hoerauf nor his property manager, Wes Hart, contacted the Henderson County Sheriff’s Office to advise of a trespassing problem. No signs were posted to advise trespassers to keep off of the property. 

Summary Judgment Standard of Review

            We review de novo the grant of a traditional motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  To prevail on a motion for summary judgment, the movant must conclusively establish the absence of any genuine question of material fact and that judgment is available as a matter of law.  Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005).  A movant must either prove all essential elements of his or her claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the nonmovant’s cause of action.  Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).  In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor.  Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). 

            When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate that none of the movant’s proposed grounds for summary judgment is sufficient to support the judgment.  See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 422 (Tex. App.—Texarkana 2002, no pet.).  Conversely, we will affirm the judgment if any one of the theories advanced in the motion for summary judgment and preserved for appellate review is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

The Summary Judgment

            The motion for summary judgment attacked Hyde’s cause of action for negligence and gross negligence for (1) condoning or allowing alcohol to be provided to, and consumed by, minors on the property, (2) “liability of a ‘pasture party,’” (3) “allowing or contributing to minors driving from the party after consuming alcohol,” (4) “providing alcohol to minors,” (5) “providing control and oversight of an unrestricted access to the property,” and (6) ”creating an unsafe or attractive nuisance.”^[6]  The allegations of negligence and gross negligence were grounded in premises liability.^[7]  Hoerauf maintained that Brandi and others attending the pasture party on his property were trespassers; he contended that Hyde’s premises liability claims were conclusively negated by demonstrating that he did not violate the duty owed a trespasser—not to cause injury to such a person through willful, wanton, or grossly negligent conduct.

            In response to Hoerauf’s motion, Hyde claimed that material fact questions existed because Hoerauf was on notice of the activities on his property, as evidenced by cut fences, tire tracks, remnants of bonfires, and beer cans and bottles strewn about.  In essence, Hyde claimed Hoerauf was on sufficient notice that pasture parties were taking place on his property such that Hoerauf should have foreseen the risk of harm or injury based on alcohol consumption by minors at such parties.^[8]  Hyde claims that the evidence presented material fact issues with respect to whether Hoerauf was willful, grossly negligent, or negligent in failing to take effective measures to ensure that such illicit gatherings were stopped.  It is apparent that this was the only issue before the trial court on motion for summary judgment.^[9]

No Duty Was Owed in Off -Premises Accident

            It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability.  Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993).  As in any other tort action, “a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.”  Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008).  The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.  Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Moritz, 257 S.W.3d at 217.  If no duty exists, then no legal liability for a premises liability claim can arise.  Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex. App.—Fort Worth 2008, pet. denied); Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 99 (Tex. App.—El Paso 2005, no pet.).

            Brandi and the other partygoers were trespassers^[10] on Hoerauf’s property.  The only duty a premises owner or occupier owes to a trespasser is not to cause injury willfully, wantonly, or through gross negligence.^[11]  Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).  The issue of whether Hoerauf was grossly negligent presumes the injury in question occurred on Hoerauf’s property.  Because Brandi was not injured by an unreasonably dangerous condition on Hoerauf’s property, there is no evidence of actionable gross negligence.

            A legal duty owed a trespasser on another’s property arises from the ownership or control of property on which the trespasser is harmed.  See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (possession and control generally must be shown as prerequisite to liability); Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704 (Tex. App.—Fort Worth 1998, pet. denied); Tex. Jur. 3d Premises Liability § 12 (2008) (duty of premises owner arises from control of the premises).  If a trespasser comes to no harm on the property on which he or she is trespassing, but is harmed off-premises, a duty does not exist under a premises liability theory of recovery.  Thus, a claim of premises liability presumes that injury occurred on property owned by the defendant.  “[T]o prevail on a premises liability claim a plaintiff must prove that the defendant possessed--that is, owned, occupied, or controlled--the premises where injury occurred.”  Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) (emphasis added); Strunk, 225 S.W.3d at 98 (before duty can be imposed, plaintiff must prove injury occurred on premises owned or occupied by defendant).  To recover on a premises defect theory, a person must have been injured by a condition on the property.^[12]  See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). A plaintiff must establish that the defendant had control over and responsibility for the premises before a duty can be imposed on the defendant.  See County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); Dukes, 252 S.W.3d at 592; Hirabayashi, 977 S.W.2d at 706 (no duty to provide patron with safe access to vacant parking lot across street abutting defendant’s premises).  The control must relate to the condition or activity that caused the injury.  See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

            In this case, no injury occurred on property owned, occupied, or controlled by Hoerauf.  Here, the injury occurred on a street or roadway—we are not given the precise location—while Brandi was en route to her home.  A property owner generally does not owe a duty to one who leaves his or her premises and is injured on adjacent highways.^[13]  See Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762–63 (Tex. App.—Houston [1st Dist.] 1994, no writ) (property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways); Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).  The right of control over the injury-causing condition or activity gives rise to the duty of care.  See Olivo, 952 S.W.2d at 528 (discussing general contractor’s liability for independent contractor’s negligent activities on premises).

            Because Hoerauf had no right of control over the injury-causing activity—driving after having ingested alcohol^[14] or even the party or drinking itself—Hoerauf owed no duty of care to prevent the accident.  Said another way, any duty Hoerauf may have owed to Brandi in his capacity as a landowner pursuant to a premises liability theory ceased when Brandi exited the Hoerauf property and was no longer considered a trespasser thereon.

            After reviewing the evidence in the light most favorable to Hyde, we determine Hyde failed to allege or raise a fact question that the injury occurred on premises owned or occupied by Hoerauf.  Hoerauf, therefore, at the time of the accident, owed no duty to Brandi under a premises liability theory of recovery.

            We affirm the judgment of the trial court.

 

 

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

 

Date Submitted:          February 24, 2011

Date Decided:             March 2, 2011

 

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[2]The original petition named Ryan C. Hoerauf, individually, Ryan C. Hoerauf, Inc., the O’Ryan family limited partnership, Ryan Properties, Inc., as a general partner, by Ryan C. Hoerauf, president, O’Ryan Oil and Gas, Ryan Properties, Inc., and Geico General Insurance Company as defendants.  The claims against Geico were nonsuited.

^[3]One of the underage revelers testified that party attendees knew they did not have permission to be on the property.

 

^[4]The new fence, constructed largely of steel pipe, was installed for the purpose of keeping the property secure from trespassers. Construction of the new fence was the third attempt by Hoerauf to address the problem.  While Hoerauf lives in Odessa, he visited his Henderson County property in the summer of 2006 after construction of the new fence was underway.Â

 

^[5]The re-fencing process commenced approximately thirty days before Brandi’s death.

 

^[6]On appeal, neither party briefed the issue of attractive nuisance; we, therefore, do not address it.  Tex. R. App. P. 38.1.

 

^[7]Certain aspects of the original petition could be construed to attempt to state a cause of action for “social host” liability. This issue was not addressed in the motion for summary judgment or response, and was not preserved for review. To the extent any such issues were before the trial court, summary judgment would be wholly proper with respect to any claimed social host liability.  Texas law does not recognize a civil cause of action for the provision of alcohol to minors.  Reeder v. Daniel, 61 S.W.3d 359, 364 (Tex. 2001) (social host has no duty not to make alcohol available to minors); Smith v. Merritt, 940 S.W.2d 602, 605 (Tex. 1997) (social host has no duty to passenger to prevent nineteen-year-old guest from drinking and driving); Dorris v. Price, 22 S.W.3d 42, 45 (Tex. App.—Eastland 2000, pet. denied) (no common-law duty to monitor alcohol consumption of minor guest who hosts know will be driving).  Further, the evidence in this case conclusively establishes that Hoerauf was not a social host.

^[8]Hyde contends that the involvement of minors is readily inferred from the nature of the events. 

 

^[9]On appeal, Hyde contends that Brandi was a licensee, rather than a trespasser, based on Hoerauf’s summer-long failure to prevent such parties.  Hoerauf contends that, because the issue of whether Brandi was a licensee was not properly before the trial court, it should not be considered as a ground for reversal on appeal.  We agree. Hyde’s response to the motion for summary judgment did not assert licensee status as a basis for avoiding the motion.  Any issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion.  Such issues are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Shumate v. Shumate, 310 S.W.3d 149, 152 (Tex. App.—Amarillo 2010, no pet.).  Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal.  Tex. R. App. P. 166a(c).

^[10]The duty owed to a plaintiff in a premises liability case depends on the status of the plaintiff at the time of the occurrence giving rise to the lawsuit.  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  This status can be one of invitee, licensee, or trespasser to the premises.  See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Almanza v. Navar, 225 S.W.3d 14, 20 (Tex. App.—El Paso 2005, no pet.).

 

^[11]The parties here disagree on whether the evidence raises a material fact issue of Hoerauf’s gross negligence.  Gross negligence means an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.  State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994). A property owner is grossly negligent only if he or she knows about an unreasonably dangerous condition on his or her property and is consciously indifferent to the safety of the persons affected by it.  Simpson v. Harris County, 951 S.W.2d 251, 254 (Tex. App.—Houston [14th Dist.] 1997, no pet.); Brazoria County v. Davenport, 780 S.W.2d 827, 829 (Tex. App.—Houston [1st Dist.] 1989, no writ).

^[12]There is no allegation of injury arising from defendant’s activity or instrumentality, rather than by a condition created thereby.  Keetch, 845 S.W.2d at 264.

^[13]We acknowledge caselaw that provides that the owner of property abutting a highway has a duty to exercise reasonable care to avoid endangering the safety of persons using the highway as a means of travel. See Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).  Such a duty, the existence of which has not been alleged in this case, has been limited to cases where an owner negligently releases upon the highway “an agency that becomes dangerous by its very nature once upon the highway.”  Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 191 (Tex. App.—San Antonio 1988, writ denied).

 

^[14]Hoerauf maintains that Brandi was intoxicated at the time of the fatal accident.  The record contains no evidence of blood-alcohol content.  The record merely shows that Brandi ingested alcohol prior to the accident.