Cassie Landrum, Individually, and as Personal Representative of the Estate of Jeffrey Landrum v. Three Aces Towing, Inc. D/B/A Three Aces Storage

Affirmed in Part, and Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed June 24, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00409-CV
CASSIE LANDRUM, INDIVIDUALLY, AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JEFFREY LANDRUM,
Appellant
V.
THREE ACES TOWING, INC. D/B/A THREE ACES STORAGE, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 18DCV0253
MAJORITY OPINION
Appellant Cassie Landrum, individually, and as personal representative of
the estate of Jeffrey Landrum, appeals the trial court’s order granting summary
judgment to appellee 3 Aces Towing, Inc. d/b/a 3 Aces Storage, and the
subsequent denial of appellant’s motion for new trial. We affirm, in part, and
reverse and remand, in part.
I. BACKGROUND
On August 14, 2017, decedent Jeffery Landrum (“Landrum”) was employed
as a tractor trailer driver by General Shelters of Texas, LTD. (“General Shelters”),
a manufacturer of portable storage units. Landrum transported and delivered
portable storage units from General Shelters’ trailer. One aspect of Landrum’s job
was to physically unload the storage units from the tractor trailer.
Robert Hancock and Dawn Hancock are the owners and officers of 3 Aces
Towing, Inc. d/b/a 3 Aces Storage (“3 Aces”) located at 21117 Interstate Highway
10 Wallisville, Texas. Robert is the president and Dawn is the vice
president/treasurer. Although 3 Aces is primarily a wrecker company, it also
operates a public mini-storage facility and sells storage units manufactured by
General Shelters on the 3 Aces property.1 On average, General Shelters has about
twenty buildings on 3 Aces’ premises. To maintain inventory, General Shelters
delivers storage units approximately three times a year, typically with at least three
units per delivery.
On August 14, 2017, Landrum arrived at 3 Aces’ facility to deliver two 8x8
General Shelters’ storage buildings. Landrum did not have anyone with him to
assist with unloading the buildings. Landrum asked Dawn if Robert was available
to help him. Dawn advised Landrum that Robert was in his tow truck responding
to an accident and that he would be back in thirty or forty minutes if Landrum
would like to wait in 3 Aces’ office. Landrum, however, told Dawn he did not
want to wait. In addition to the two buildings to deliver to 3 Aces, Landrum had
two buildings to deliver in Dickinson, Texas before returning to Center, Texas.
1
3 Aces started doing business with General Shelters in 2015. The two companies have
a commission sales contract. 3 Aces receives ten percent commission from each sale. The
buildings sell for approximately $5,000.00.
2
Landrum asked Dawn to borrow some tools to take the “wide load” signs off
the trailer. Dawn drove Landrum and her two grandchildren in a golf cart from the
office to the garage where Robert stored his tools; Landrum found the tools he
needed and Dawn drove them back over to where Landrum had parked the truck.
After removing the “wide load” signage from the truck, Landrum got behind the
8x8 building and began pushing it toward the end of the trailer. Although the
General Shelter’s truck was equipped with a winch, Landrum did not utilize the
winch. Dawn did not observe Landrum using a rope, chain, or any other sling to
pull the building.
At some point, however, the rollers on which the building was situated
became stuck and the building would not move. Landrum asked Dawn if she could
help him push the building to the end of the trailer, which she estimated was
maybe a foot. While her grandchildren sat in the golf cart, Dawn walked over to
where Landrum was standing on the passenger side of the trailer and while
Landrum pushed from the top, Dawn pushed from the bottom of the same corner.
They pushed the building to the very end of the trailer. Dawn recalled that
Landrum already had pulled out the ramps that go down from the end of the trailer.
Landrum asked Dawn to step away in case the building were to fall. Landrum told
Dawn he was going to pull it and walk it down with his hands.
Dawn saw Landrum leave the side of the building, but then turned her
attention to her grandchildren. Dawn then heard the building crash. Dawn ran to
the other side of the building to see if Landrum was on the other side of it. She
realized Landrum was underneath the building when she heard him calling out her
name for help. Dawn tried to lift the building but could not move it. She
telephoned 911 for help. She continued to speak with Landrum while waiting for
emergency services to arrive; however, when Landrum stopped speaking, Dawn
3
ran to the excavator2 3 Aces kept on the property. Although Dawn had never
operated the excavator, she drove it over to the fallen building. After one failed
attempt, Dawn was able to hook a chain on the building and lift up the building
with the excavator. Dawn then located two cinder blocks and placed the blocks
underneath the building. It was too late; Landrum died from his injuries.
On April 12, 2018, appellant Cassie Landrum, on behalf of herself and her
father’s estate (“appellant”), filed suit against General Shelters, Robert, Dawn, and
3 Aces for the injuries and subsequent death of her father. Appellant asserted
claims for negligence and, alternatively, premises liability.
On December 11, 2018, Robert, Dawn, and 3 Aces’ filed their traditional
motion for summary judgment, using as evidence in support of their motion
appellant’s first amended petition, excerpts from the depositions of Dawn and
Robert. In their motion, they argued that the facts demonstrate that, at all relevant
times, Robert and Dawn were acting as employees and/or representatives of 3
Aces. As such, they argued that summary judgment should be granted as to
appellant’s claims against Robert and Dawn in their individual capacities. They
further maintained that they were entitled to summary judgment on appellant’s
premises liability claim because the facts demonstrate that the incident did not
arise out of a condition on the property and that Landrum was aware of the danger
of the building falling as he told Dawn to step back. Finally, they asserted they
were entitled to summary judgment on appellant’s negligence and gross negligence
claims because they owed no duty to Landrum. They argued they did not exercise
any control over Landrum as he was employed by General Shelters and General
Shelters owned the tractor/trailer Landrum drove.
2
Excavators are heavy construction equipment featuring a bucket, arm, rotating cab, and
movable tracks. Excavators are used for construction tasks, including landscaping, digging holes
and trenches, lifting, placing large objects, and demolition of structures.
4
The following day, on December 12, appellant filed a second amended
petition, asserting causes of action for negligence, gross negligence, premises
liability, and negligent undertaking.
Robert, Dawn, and 3 Aces filed a supplement to their motion for summary
judgment addressing the additional claim of negligent undertaking set forth in the
second amended petition. They argued they were entitled to summary judgment on
this claim as well because none of Dawn’s actions were undertaken for Landrum’s
protection; rather, Dawn assisted in moving the unit about a foot because it had
become stuck on the trailer. Additionally, they argued that Landrum did not rely
upon Dawn because he told her to move out of the way. Finally, they asserted that
the mere act of helping Landrum push the unit to the edge of the trailer did not
cause or contribute to the accident and did not increase the risk. They contended
that Landrum was solely responsible for the determination as to the method as to
how to unload the trailer.
On January 10, 2019, appellant filed her response to their motion for
summary judgment. Appellant argued that summary judgment should be denied
because Dawn voluntarily undertook to perform a duty owed by another to
Landrum and was negligent in doing so. Appellant asserted that Dawn owed
Landrum a duty of ordinary care. Appellant contended that Dawn, by voluntarily
assisting Landrum in the unloading of the building, undertook to perform a duty to
safely assist him that was owed to Landrum by General Shelters. Appellant
maintained that by performing that duty in a negligent manner, 3 Aces remains
liable to appellant and summary judgment should be denied.
Thereafter, Robert, Dawn, and 3 Aces filed their reply arguing Dawn did not
assume a duty and should not have recognized a danger by simply helping
Landrum move the building to the edge of the trailer after it had become stuck.
5
They further argue that Robert was not even present on site at the time of the
incident and, thus, could not have breached any duty to Landrum.
On January 17, 2019, the trial court heard oral argument on 3 Aces’ motion
for summary judgment. The following day, January 18, pursuant to the trial
court’s request, appellant submitted supplemental letter briefing. Additionally, on
that same day, appellant filed a partial notice of non-suit without prejudice,
dismissing her claims against Robert and Dawn individually. On January 22,
2019, the trial court granted appellee’s motion for summary judgment.
On February 6, 2019, General Shelters supplemented its discovery responses
with a copy of the consignment agreement between itself and 3 Aces. The next
day, February 7, Robert, Dawn, and 3 Aces filed an opposed motion to sever,
which the trial court granted on February 11, 2019.
On March 4, 2019, appellant filed a motion to reconsider summary
judgment, arguing that the consignment agreement between 3 Aces and General
Shelters imposes a contractual duty upon 3 Aces to be responsible for the delivery
and set-up of General Shelters’ buildings. Appellant argues that this changed the
analysis of the duty question in this case. On March 5, 2019, appellant filed a
motion for new trial based on the consignment agreement. Robert, Dawn, and 3
Aces filed a response to both motions, contending that the consignment agreement
is not material because it only required 3 Aces to “coordinate the delivery and set-
up of any item of inventory.”
On May 14, 2019, the trial court denied appellant’s motion to reconsider and
motion for new trial. This appeal timely followed.
6
II. ANALYSIS
Appellant raises two issues on appeal. In her first issue, appellant contends
the trial court abused its discretion in denying appellant’s motion to reconsider and
motion for new trial. In her second issue, appellant argues the trial court erred in
granting 3 Aces’ motion for summary judgment, asserting 3 Aces owed Landrum a
legally cognizable duty when Dawn became involved in the unloading procedure.
A. MOTION TO RECONSIDER AND MOTION FOR NEW TRIAL
1. STANDARD OF REVIEW AND GOVERNING LAW
We review the trial court’s denial of a motion to reconsider and motion for
new trial for an abuse of discretion. See Golden Eagle Archery, Inc. v. Jackson, 24
S.W.3d 362, 372 (Tex. 2000); Wichman v. Kelsey-Seybold Med. Group, PLLC, No.
14-18-00641-CV, 2020 WL 4359734, at *2 (Tex. App.—Houston [14th Dist.] July
30, 2020, no pet.); Macy v. Waste Mgmt. Inc., 294 S.W.3d 638, 651 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). We generally, however, do not defer to the
trial court on questions of law. See Schuring v. Fosters Mill Vill. Cmty. Ass’n, 396
S.W.3d 73, 76 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“The abuse of
discretion standard of review means different things in different contexts. In
general, we do not defer to the trial court on questions of law, and we defer to a
trial court’s factual findings if they are supported by evidence.”).
2. CONSIGNMENT AGREEMENT
After the trial court rendered the summary judgment order in favor of
Robert, Dawn, and 3 Aces, appellant filed a motion for reconsideration that
included evidence of a consignment agreement between General Shelters and 3
Aces that had not been presented to the trial court. Appellant argues that the trial
court abused its discretion in refusing to reconsider Robert, Dawn, and 3 Aces’
7
summary judgment motion because the consignment agreement was new, material
evidence that likely would have changed the outcome of the trial court’s decision.
It is undisputed that General Shelters did not supplement its responses to
appellant’s April 2018 discovery request with the consignment agreement until
February 6, 2019, which was approximately two weeks after the trial court
rendered summary judgment. Despite being served with the same discovery
requests, 3 Aces never provided appellant with a copy of the consignment
agreement. Appellant argues that the consignment agreement demonstrates that 3
Aces had a contractual duty to assist Landrum with the unloading of the buildings.
Appellant argues that the consignment agreement imposes a duty upon 3
Aces and makes it responsible for the delivery of the General Shelters’ buildings.
Appellant cites to paragraph 9 of the consignment agreement, which provides:
9. Delivery and Set-up to Customer: It is the responsibility of
Consignment Distributor [(3 Aces)] to coordinate the delivery and set-
up of any item of inventory sold by Consignment Distributor.
Appellant argues that 3 Aces’ summary judgment argument rested its claim that it
had no duty with regard to the delivery process. Appellant argues that this claim is
refuted by the consignment agreement. Appellant contends that this provision
imposes a duty on 3 Aces and makes it responsible for the delivery of General
Shelters’ buildings. Appellant argued that in exercising such a duty, 3 Aces was
negligent. At a minimum, appellant argues that the evidence of contractual duty
presented more than a scintilla of evidence whereby appellant’s claims should have
survived summary judgment.
3 Aces contends that the consignment agreement is not material because it
only required 3 Aces to “coordinate the delivery and set-up of any item of
inventory.” As set forth in bold, the portion of the consignment agreement at issue
8
relates to delivery and set up to the customer. It does not require or even reference
3 Aces unloading the buildings or supervising the process. Thus, 3 Aces maintains
that the consignment agreement itself does not support appellant’s contention.
Additionally, 3 Aces also argues that Rusty Sanford (“Sanford”),
transportation supervisor for General Shelters, testified at his deposition about his
understanding of the meaning of the consignment terms “coordinate and set-up,”
stating that General Shelters did not expect 3 Aces to unload the sheds. Sanford
testified that the only thing that General Shelters expected from 3 Aces was to:
show up and look at the buildings, but not – not the unloading
procedure, only to verify that they got a good quality product at that
point; that our driver did not fail to tell us that they damaged
something.
As for coordination, General Shelters did not expect Dawn or Robert or anyone
from 3 Aces to be present during the time of unloading or assist in the unloading.
With regard to the term “set up,” it references the end-user’s location–i.e., once the
customer bought the product, set-up refers to putting the building on the
customer’s site. In this regard, Dawn testified as to the history of their dealings
and that she typically was not present for the unloading of the buildings; Robert
testified he was not present at the time of the incident and on a few prior occasions
had assisted a driver unloading larger sheds by hooking up a chain to the runners of
the building, backing up the excavator, and pulling the building off the trailer.
Based on the terms of the assignment agreement itself as well as the
deposition testimony of Sanford, Dawn, and Robert, the trial court could have
determined that the consignment agreement was not so material that it would
probably have produced a different result if a new trial were granted. See Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (setting forth elements a
party seeking a new trial based on newly discovered evidence must demonstrate).
9
Thus, we cannot conclude the trial court abused its discretion by refusing to
reconsider its summary judgment and/or grant appellant a new trial based on an
alleged contractual duty under the consignment agreement.
Appellant’s first issue is overruled.
B. SUMMARY JUDGMENT
1. STANDARD OF REVIEW
We review the granting of a summary judgment under a de novo standard of
review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). “[W]e apply the familiar standard of review appropriate for
each type of summary judgment, taking as true all evidence favorable to the
nonmovant, and indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor.” Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675–
76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
To prevail on a traditional motion for summary judgment, a movant must
establish that no genuine issue of material fact exists and that the movant is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289
S.W.3d at 848. Once the movant facially establishes its right to summary
judgment, the burden shifts to the nonmovant to present a material fact issue that
precludes summary judgment. See City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979); Dolcefino v. Randolph, 19 S.W.3d 906, 916
(Tex. App.—Houston [14th Dist.] 2000, pet. denied). Evidence raises a genuine
issue of fact if reasonable and fair-minded jurors could differ in their conclusions
in light of all of the summary judgment evidence. See Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
10
When, as here, the trial court’s order granting summary judgment does not
specify the grounds relied on for the ruling, the summary judgment will be
affirmed if any of the theories advanced are meritorious. State Farm Fire & Cas.
Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Olmstead v. Napoli, 383 S.W.3d
650, 652 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
2. NEGLIGENT UNDERTAKING
To sustain her negligence claim, appellant was required to establish that 3
Aces violated a legal duty owed to Landrum. See Torrington Co. v. Stutzman, 46
S.W.3d 829, 837 (Tex. 2000). Texas law generally imposes no duty to take action
to prevent harm to others absent certain special relationships or circumstances. See
SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995); see also
Restatement (Second) of Torts § 314 (1965) (“The fact that [an] actor realizes or
should realize that action on his part is necessary for another’s aid or protection
does not of itself impose upon him a duty to take such action.”). For example, one
who voluntarily undertakes an affirmative course of action for the benefit of
another has a duty to exercise reasonable care that the other’s person or property
will not be injured thereby. See Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818
S.W.2d 392, 395–96 (Tex. 1991) (citing Colonial Sav. Ass’n v. Taylor, 544 S.W.2d
116, 119 (Tex. 1976)).
Appellant claims that 3 Aces owed a duty of care to Landrum under a
negligent undertaking theory. To establish a negligent undertaking, a plaintiff
must demonstrate that “(1) the defendant undertook to perform services that it
knew or should have known were necessary for the plaintiff’s protection; (2) the
defendant failed to exercise reasonable care in performing those services; and
either (a) the plaintiff relied upon the defendant’s performance, or (b) the
defendant’s performance increased the plaintiff’s risk of harm.” Nall v. Plunkett,
11
404 S.W.3d 552, 555–56 (Tex. 2013) (citing Torrington Co., 46 S.W.3d at 838–39
and Restatement (Second) of Torts § 324A (providing rule for liability to third
person for negligent performance of undertaking)).3 The undertaking may be
gratuitous or for consideration, and a contractual obligation may be an undertaking
so long as it is accompanied by at least partial performance or reliance. See
Sbrusch, 818 S.W.2d at 397.
As with any negligence claim, a negligent-undertaking claim requires proof
that the defendant owed the plaintiff a legal duty and violated it. See Torrington,
46 S.W.3d at 837. The existence of a legal duty is a question of law for the court.
Nabors Drilling, U.S.A. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Sbrusch, 818
S.W.2d at 395. “Any such determination involves the balancing of a variety of
factors, ‘including the risk, foreseeability, and likelihood of injury, and the
consequences of placing the burden on the defendant.’” Allen Keller v. Foreman,
343 S.W.3d 420, 425 (Tex. 2011) (quoting Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 767 (Tex. 2010)).
3
With respect to liability to a third person, the Restatement (Second) of Torts section
324A, “Liability to Third Person for Negligent Performance of Undertaking,” provides:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to [perform] his undertaking,
if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon
the undertaking.
Restatement (Second) of Torts § 324A (1965).
12
3. APPLICATION
With respect to the duty element of her negligent-undertaking claim,
appellant was first required to present evidence that Dawn “undertook to perform
services that it knew or should have known were necessary for [Landrum’s]
protection.” See Nall, 404 S.W.3d at 555–56. Appellant argues that Dawn, as a
corporate officer of 3 Aces, voluntarily undertook to perform a duty owned by
another to Landrum and was negligent in doing so. Appellant contends that Dawn,
as an agent of 3 Aces, voluntarily assumed the duty to help Landrum unload the
building and became directly involved in the unloading process. Appellant
maintains that Dawn undertook an active role in the unload procedure and that she
was negligent in doing so because she increased the risk of harm to Landrum by
joining in the unload procedure, pushing the building to the edge of the trailer, and
then leaving Landrum to control the building by himself.
Although 3 Aces maintains that Dawn did not undertake a duty by helping
Landrum push the building to the edge of the trailer, its contention is contradicted
by Dawn’s deposition testimony. In her deposition, Dawn testified as follows:
Q: So walk me through between once he gets the “wide load” signs
laid on the ground and to when he says, “Hey, Dawn, can you come
over here and help me push this?”
A: He had pushed the building, and then I guess it had stopped.
And he just said, “Hey, do you mind giving me a hand and just
pushing it to the end of the trailer?”
***
Q: Could you see – did you actually physically see him push the
building the first time?
A: I saw him when he started pushing it, yes.
Q: Did you see when the build – the – Shelter Number 1 got
caught in a bind and wouldn’t move further?
13
A: No, I didn’t see that.
Q: Did you hear anything that caused you to think that it was
caught in a bind and wouldn’t move anymore?
A: No.
***
Q: And no – nothing else between that time and until the time Jeff
comes over and says, “Can you give me a hand”?
A: Yeah. He didn’t actually come over. He just turned and asked
me to help him.
***
Q: During the time that you initially saw Jeff push the shelter until
the time he turned to you and said, “Can you give me a hand?” did
you express any concern about the manner and means in which he was
unloading that shelter?
A: No.
Q: At the point in time where he says, “Can you give me a hand?”
you say, “No problem,” and go in and assist, right?
A: Correct.
Q: At that point in time, you become part of the unloading
procedure?
A: Correct.
By inserting herself in the unloading procedure, Dawn undertook a duty to
protect Landrum from dangers that an ordinarily prudent person could foresee were
a likely result of the situation. Dawn clearly “acted in a way that requires the
imposition of a duty where one otherwise would not exist.” Nall, 404 S.W.3d at
555 (emphasis added). Landrum relied on Dawn’s assistance in unloading, which
is demonstrated by his request for Dawn to help push the building to the edge of
the trailer. Dawn’s assistance in pushing the building to the edge of the trailer
increased a risk of harm to Landrum because neither a winch, hook, rope, or chain
was being utilized to prevent the building from tipping over See id. at 555–56.
14
Dawn did not express any concern about the manner or means in which Landrum
used to unload the building. In fact, when it became reasonably foreseeable that
the unloading procedure was unsafe, Dawn failed to take remedial measures.
Instead, Dawn stopped rendering assistance to Landrum and left him to lower the
building on his own.
Having viewed the evidence in the light most favorable to appellant, we
conclude that Appellee has not established that no genuine issue of material fact
exists such that Appellee was entitled to judgment as a matter of law.
The dissent maintains that the evidence is “undisputed” that Dawn’s actions
were limited to helping appellant push the building approximately one foot;
however, this is misleading because it fails to address the issue of whether Dawn’s
actions were part of the unloading process. A fact issue remains as to whether
Dawn, as a corporate officer of 3 Aces, upon inserting herself in the unloading
process, failed to continue to render Landrum assistance in a safe and reasonable
manner.4 Accordingly, we hold that the trial court erred in granting summary
judgment in favor of 3 Aces on appellant’s negligent undertaking claim. See Tex.
R. Civ. P. 166a.
Appellant’s second issue is sustained.
III. CONCLUSION
We affirm the trial court’s denial of appellant’s motion to reconsider and
motion for new trial. We reverse the trial court’s order granting 3 Aces’ motion
for summary judgment and remand to the trial court for further proceedings
consistent with this opinion.
4
“The nonexistence of a duty ends the inquiry into whether negligence liability may be
imposed.” Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).
15
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson (Wilson, J., dissenting).
16