Esmeralda Granado v. Dillard Department Stores, Inc.

                             NUMBER 13-04-030-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

ESMERALDA GRANADO,                                           Appellant,

                                           v.

DILLARD DEPARTMENT STORES,

INC.,                                                                     Appellees.

                  On appeal from the 138th District Court

                          of Cameron County, Texas.

                     MEMORANDUM OPINION^[1]

              Before Justices Rodriguez, Castillo and Garza

                  Memorandum Opinion by Justice Castillo

After allegedly sustaining an injury inside a local mall, appellant Esmeralda Granado brought general negligence and vicarious liability claims against appellant Dillard's, Inc. ("Dillard's").  Granado alleged that Heather Herring, a mall employee who ran into her with a supply cart, was employed by or under the control of Dillard's. Dillard's moved for traditional summary judgment, which the trial court granted on all claims.  It is from that judgment that Granado appeals.  We affirm.

I.  FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 4, 2000, while Granado shopped in the mall, a cart reportedly containing plywood Christmas decorations struck the side of Granado's lower leg.  Herring, the assistant marketing director of the mall and employee of a co-owner of the mall, the M.G. Herring Group, ("the Group"), pushed the cart in question.  The incident occurred in a common area of the mall, not within a particular store. 

A.  Dillard's Motion

Granado brought suit against Dillard's as co-owner of the mall for the negligence of its alleged employee, Herring.  In its traditional summary-judgment motion,  Dillard's asserted it owed no duty to Granado because it had no control over or any employment relationship with Herring.  Dillard's summary-judgment evidence included an excerpt from Herring's deposition.  Herring testified she was the assistant marketing director for the mall and worked for the Group, a shopping center developer. She further testified, in part:

Q:  [W]ho was your employer?

A:  The M.G. Herring Group.

Q:  Was Dillard's, Inc. or Dillard's Department Stores in any way your employer on that day?

A:  Not to my knowledge.

Q:  Did Dillard's, Inc. or Dillard's Department Stores ever on that day control your work detail?

A:  No.

Q:  Were theyBwould Dillard's in any way ever tell you how to push the cart or to push the cart or specifically what to do that day?

A:  No. 

Q:  This impact that occurred between the cart and Ms. Granado's leg, how would you describe it?

A:  A tap, very light, very light impact.

. . .

Q:  Ms. Herring, just to clarify, then, on the particular day in question did you have any kind of an employment relationship with Dillard's?

A:  No.

Q:  The decorations that you were preparing and carting, were theyBat whose request or direction were they being carted?  In other words, who was doing the decoration for the mall?

A:  I was doing the decoration.

Q:  And you were doing that on behalf of who?  Your employer?

A:  My employer, yes.

Q:  And who was that?

A:  The M.G. Herring Group.

B.  Granado's Response

Granado stated in her summary-judgment response that Dillard's failed to prove the essential elements of its defense, in particular, that (1) Herring was an independent contractor or (2) Herring and the Group were not involved in a joint enterprise with Dillard's.  In her summary-judgment affidavit, Granado attested that Herring pushed the cart that struck Granado's leg.  Through communications involving her claim, she determined that Dillard's, and not the M.G. Herring Group, was the responsible party.^[2]              As summary-judgment evidence, Granado also attached Herring's complete deposition.  Herring testified that before the incident, she was exiting the decor room and heading toward the area directly in front of Dillard's to set up Christmas decorations during normal business hours.  Granado exited a store and, without looking, stepped in front of the cart.  Stating the fault was Granado's, Herring testified, "I believe she should have looked where she was going, just as if you would when you walked out of a store to make sure you didn't run into someone."  Herring described the incident as a "slight tap," stating, "I did impact her but very slightly."  Herring testified two mall employees accompanied her.  One walked in front of the cart to clear the path of customers.  Herring testified, "One of the people was more to the front but we were making a lot of noise.  The carts were very loud and made a lot of noise on the tile floors and echoing through the mall very loud. . . .  We were making a lot of noise.  It would be very difficult to not know that we were there."  The number of customers "definitely kept me from going very fast," she added.

Herring further testified that the president of the Group, her employer, is her father and that the Group was "involved in ownership" of the mall with Brownsville Mall Developers and Dillard's.  She testified that she took direction from the mall's general manager, Cesar Briseno, and explained that she and the mall manager "didn't answer to Dillard's."   

Granado also attached Briseno's deposition testimony.  Briseno testified that, on the date of the incident, he was not affiliated with the mall; rather, he began work with the mall two days after the incident. His understanding was that the Group and Dillard's were co-owners of the mall, with the Group's role being the "landlord."  He testified as follows:

Q:  Do you have any idea what the arrangements were between Mr. Herring and Dillard's company with regard to the management?

A:  No, sir.  I was not privy to that information. 

Briseno testified that the Group directed him to report incidents to Dillard's risk management office; however, the Group, and not Dillard's, provided the claim forms. Briseno further testified:

Q:  Okay.  And so in terms of these instructions of the details of your work you never got any instructions from Dillard's, it was always M.G. Herring Group, correct?

A:  That is correct.

Q:  And so the jury gets a real good sense of it, you were never an employee of Dillard's, right?

A:  No, sir.

Q:  And neither was anybody else that was managing the mall for M.G. Herring Group, correct?

A:  That's correct.

Briseno admitted he was not privy to the business relationship between the Group and Dillard's. He received his information solely from the Group, which was his employer.  He further testified that Dillard's (1) was neither Heather Herring's nor his employer, (2) did not provide him instructions on the details of his work, (3) did not control the details of his work or of any other mall employees, and (4) did not control the details of Heather Herring's work on the date in question.  Briseno testified that  Herring and he did not have any employment relationship with Dillard's.

C.  Dillard's Reply

After Dillard's filed its summary-judgment motion, but before submission, Granado amended her petition to allege liability based on a joint enterprise theory.  Dillard's filed a reply challenging the joint enterprise theory raised in Granado's response and the amended pleading. Dillard's asserted that Granado could not prove the essential element of equal right to control in that cause of action. Without stating the grounds, the trial court granted Dillard's summary-judgment motion as to all claims. Granado timely filed a motion for new trial which the trial court denied.  This appeal ensued. 

II.  ISSUES ON APPEAL

By one issue, Granado asserts generally that Dillard's did not establish as a matter of law that it was not Herring's employer.^[3]  In sub-issues, Granado asserts:  (1) even if Dillard's was not Herring's employer, Dillard's was involved in a joint enterprise with any co-owner of the mall and, thus, was liable for Herring's acts on that theory; and (2) summary judgment is improper due to a pleading defect.

III.  STANDARD OF REVIEW

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial.  Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972).  The propriety of a summary judgment is a question of law.  Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Tex. R. Civ. P. 166a(c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.). 

The movant for summary judgment has the burden of showing that there  is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.  Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor, while any evidence not in the favor of the non-movant must be discarded.

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); see also KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.).  A defendant seeking a traditional summary judgment must prove that no genuine issue of material fact exists concerning plaintiff's claim, therefore entitling defendant to a judgment as a matter of law.  Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).  "A defendant who conclusively negates at least one of the essential elements of each of plaintiffs' causes of action or who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment."  Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).  If the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact to preclude summary judgment.  City of Houston, 589 S.W.2d at 678.  When a trial court's order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Hoyt, 105 S.W.3d at 344; Ortega, 97 S.W.3d at 772.  

IV.  TRADITIONAL SUMMARY-JUDGMENT ANALYSIS

The crux of Dillard's summary-judgment motion is that, because Dillard's was not Herring's employer and had no right to control her work, Granado could not prove the essential element of a legal duty in her negligent activity claim.  A premises owner may be liable for two types of negligence in failing to keep the premises safe:  (1) that arising from a premises defect, and (2) that arising from an activity on the premises. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999) (per curiam); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (declining "to eliminate all distinction between premises conditions and negligent activities"); McKethan v. McKethan, 477 S.W.2d 357, 360 (Tex. Civ. App.BCorpus Christi 1972, writ ref'd n.r.e.) (referring to "active negligence").  Granado did not allege any claim arising from a premises defect.  Thus, this is a negligent activity case, not a premises defect case.  Koch Ref. Co., 11 S.W.3d at 156.   

A.  The Negligent Activity Claim^[4]

By her lawsuit, Granado alleges that Dillard's was actively negligent for Herring's hitting her with a cart.  To recover against a land possessor under a negligent activity theory, the plaintiff must prove she was injured by, or as a contemporaneous result of, the negligent activity itself, rather than by a condition created by the negligent activity. See Keetch, 845 S.W.2d at 264. The plaintiff's injuries must be directly related to an ongoing activity.  Id.  By her sole issue, Granado asserts that Dillard's failed to establish as a matter of law that it was not Herring's employer.  We take as true all evidence favorable to Granado, and we indulge every reasonable inference and resolve any doubts in her favor.  See IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)).  The probative summary-judgment evidence conclusively establishes that Dillard's was not Herring's employer.  The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question.  Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Thus, Dillard's established a right to summary judgment as a matter of law on grounds that it was not Herring's employer and, thus, had no duty to Granado.^[5]  Bradley, 990 S.W.2d at 247; Alaniz, 105 S.W.3d at 344; Ortega, 97 S.W.3d at 772.  We overrule Granado's issue.

B. Joint Enterprise

By one sub-issue, Granado asserts that Dillard's is liable under a joint enterprise theory.  Granado advanced the joint enterprise theory of liability both in its summary-judgment response and its amended live pleading to defeat Dillard's claim to summary judgment as a matter of law.^[6]  See Tex. R. Civ. P. 166a(c).  The elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.  Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 16‑17 (Tex. 1974) (quoting Restatement (Second) of Torts ' 491 (1965)).   

In its summary-judgment reply, without objection, Dillard's generally asserted that, even assuming Granado prevailed on her active negligence claim, which Dillard's denied, Granado could not prove any of the elements of joint enterprise.  Because it is dispositive, we focus our analysis on the fourth and last required element of a joint enterprise claim, "an equal right to a voice in the direction of the enterprise, which gives an equal right to control."  Shoemaker, 513 S.W.2d at 16-17.  Both Herring and Briseno testified in their depositions that the Group was their direct and sole employer and had the exclusive right to control their work-related activities, duties and conduct.  They further testified that the Group exercised the right to control the details of their work.  Thus, the uncontroverted summary-judgment evidence negates at least one essential element of Granado's joint enterprise theory.  Triplex Communications v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) (holding that the fact that some elements are satisfied does not compensate for the lack of evidence as to an essential element).  We conclude that Granado did not meet her burden to present evidence raising a genuine issue of material fact in order to preclude summary judgment as a matter of law.  City of Houston, 589 S.W.2d at 678.  Because Dillard's conclusively negated at least one essential element of Granado's joint enterprise claim, it was entitled to summary judgment on that claim. Mason, 143 S.W.3d at 798. Accordingly, we conclude that summary judgment is proper.  We overrule Granado's first sub-issue. 

C. Pleading Defect

By a second sub-issue, Granado asserts that summary judgment is improper because Dillard's did not plead duty as an affirmative defense.  "[L]ack of duty is not an affirmative defense because duty is an essential element of a plaintiff's case."  Toles v. Toles, 113 S.W.3d 899, 909 (Tex. App.BDallas 2003, no pet.) (citing Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex. 1970)).  Because duty is an essential element of the negligence claim, we conclude that Dillard's need not plead the lack of duty as an affirmative defense.  See id.; Tex. R. Civ. P. 94.  We overrule Granado's second sub-issue.

V. CONCLUSION

        We affirm the trial court's summary judgment.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this 31st day of August, 2005.

---

^[1] See Tex. R. App. P. 47.2, 47.4.

^[2] Granado attached as summary-judgment evidence letters from claim adjusters that list Dillard's, Inc. as the insured.

^[3] Dillard's liability under respondeat superior is derivative from its liability under negligence as both are based upon the existence of an employer‑employee relationship.  Though they themselves may have committed no wrong, an employer and principal may be held vicariously liable for negligence on the part of an agent or employee, provided that person was acting "within the scope of his or her agency or employment."  Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). Justification for imposition of such liability stems from the theory that "the principal or employer has the right to control the means and methods of the agent or employee's work." Id.  In its summary-judgment motion, Dillard's claimed, among other things, that it owed no duty to Granado.

^[4] A cause of action for negligence in Texas requires three elements.  D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).  There must be a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.  Id. (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)).  Proximate cause requires both cause in fact and foreseeability.  Id. (citing Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex. 1975)).  Foreseeability exists when "the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates for others."  Id. (citing El Chico Corp., 732 S.W.2d at 313).  The threshold inquiry is duty.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

^[5] Even if Dillard's had a duty to Granado, an issue we do not decide, her claims fall short of proximate cause as a matter of law.  IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 801 (Tex. 2004) (assuming the existence of a duty and resolving the appeal on the basis of one of the other elements of negligence, proximate cause).  Viewing the competent evidence favorably to Granado, the trial court could have properly granted summary judgment on other grounds.  The trial court could have concluded that the alleged omissions were not ongoing activities but, rather, created a condition that makes the injury possible.  See id.; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) (holding that when the facts are undisputed proximate cause can be a question of law); see also Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (holding that if the connection between the defendant's negligence and the plaintiff's injury is too attenuated, cause in fact is not established); Davidson v. Gulf, C. & S. F. R. Co., 136 S.W.2d 923, 928 (Tex. App.BFort Worth 1940, writ dism'd) ("In view of all the facts developed, and those upon which no evidence was offered, we believe the trial court properly decided that there was no evidence to form an issue of whether or not the employees' failure to do the things enumerated constituted such active negligence as would render defendants liable for the injuries sustained by plaintiff.").  Accordingly, the trial court could have properly concluded Dillard's established a right to summary judgment as a matter of law on Granado's negligence claim. See Mason, 143 S.W.3d at 801; Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).  

^[6] As previously noted, Granado amended her petition to allege a joint enterprise theory of liability after Dillard's filed its summary-judgment motion. We pause to briefly address the issue in the context of our jurisdiction because it is determinative of finality of the summary judgment.  The parties addressed the joint enterprise theory in summary-judgment proceedings and, thus, the theory was  squarely before the trial court at the time it entered summary judgment.  We conclude that the summary judgment disposed of all Granado's claims in her pleading, as amended, and was final.  Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  Accordingly, the issue is properly before us.  See id.