Gatten, Cherilyn v. Garry Rosser, Windell & Tammy McCarley

AFFIRM; Opinion Issued January 30 2013.
In The
CLuIr1 Lii Arnnth
Yiftt itrirt of at Da1ku
No, 05-1 1-01138-CV
CHERILYN GATTEN, Appellant
V.
W1NDELL MCC ARLEY AND TAMMY MCCARLEY, Appellee
On Appeal from the 366th District Court
Collin County, Texas
[I1 Court Cause No. 366-02441-2009
OPINION
Before Justices Bridges, Richter
, and Lang
1
Opinion By Justice Richter
Cherilyn Gatten appeals the trial court’s final judgment dismissing her claims against
Windell McCarley and Tammy McCarley. In her sole issue, appellant contends the trial
court erred by dismissing her third amended petition against appellees, Windell McCarley
and Tammy McCarley, for failure to state a cause of action. For the reasons set forth herein,
we affinn the judgment of the trial court.
The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
BAUKGI{()UNI3
AppeIIn s husband. Ferry (jaiten, and ( iary Rosser were both employed by
appellees, Windell and Tamm McCarley. Rosser, Tammy MeCarley’ s brother. also lived
with the appellees. Windell McCarley invited Terry Gatten to a house-warming party at his
home. Appellant alleges that prior to the party. Rosser told appellees that he intended to
provoke a fight with Terry (iatten at the party. However, appellees did not inform Cherilvn
or Ferry Gatten of Rossers alleged intentions. I3efore the Gattens aITived. Rosser allegedly
assaulted an unnamed individual at the party. Appellant claims appellees knew about this
assault but did nothing to remove Rosser from their home or to make the premises safe for
other guests.
Once the Gattens arrived at the party, Rosser attempted to provoke a fight with Terry
Gatten but Terry walked away. As Cherilyn and Terry Gatten were leaving the party. Rosser
approached them from behind and struck Cherilyn in the head. Appellant alleges Rosser’s
blow caused her to fall backwards, strike the hack of her head on the concrete floor, and lose
consciousness. At this point, Terry Gatten was provoked into a fight with Rosser. After the
assault on Cherilyn Gatten and the fight with Terry Gatten, appellees ordered Rosser to leave
the premises. Appellant alleges that as a result of the blow to her head, her vision
substantially declined and she may become totally blind.
Cherilyn Gatten filed suit against Gary Rosser, Windell McCarley. and Tammy
McCarley. In her original petition, she asserted a claim against Gary Rosser for intentional
assault. She asserted negligence claims against Windell and Tammy McCarley for failing
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to warn of Rosser’s intentions, pennitting Rosser 10 be on the premises, and failing to
require Rosser to leave the premises when the Gattens arrived. Appellant amended her
petition three times. Appellees specially excepted to the first amended petition but their
exception was denied. Appellecs specially excepted to the second amended petition on the
ground that it failed to state a cause of action and their exception was sustained with leave
to amend. Cherilyn Gatten filed a third amended petition, adding claims against appellees
for wanton misconduct and gross negligence. Appeilees specially excepted to the third
amended petition, again on the ground that it failed to state a cause of action. Appellees’
special exception to the third amended petition was sustained and the causes of action
against appellees were dismissed. The dismissal was incorporated into the final judgment
once a default judgment was taken against the remaining defendant Gary Rosser. This
appeal followed.
DISCUSSION
A. STANDARD 01? REVIEW
In one issue, appellant contends the trial court erred in granting appeilees’ special
exceptions to appellant’s third amended petition and dismissing the claims against appellees
for failure to state a cause of action. Special exceptions may be used to challenge the
sufficiency of a pleading. Friesenhalin v. Ryan, 960 S.W.2d 656,658 (Tex. 1998); flx. R.
Civ. P.91. The purpose of a special exception is to compel clarification of pleadings when
the pleadings are not sufficiently specific or fail topl a cause of action. Baylor Univ. v.
Sonnichsen. 221 S.W.3d 632, 635 (Tex. 2007). Generally, when the trial court sustains
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‘.pecial exceptions, it must give the pleidcr an opportunity to amend the pleadings. See Id.
see also County of Cameron v. Brown. 80 S.W.3d 549, 559 (Tex. 2002). If the defect in the
pleading is not corrected by the amendment and the remaining portions of the pleading fail
to state a cause of action, the trial court may dismiss the case. l?os. r. GOl(lsteifl, 203 S.W.3d
508. 5 1 2 (Tex. App—Houston [14th DisL I 2(>06, no pet.): Cole v. Hail. 864 S.W.2d 563.
566 (Tex. App—Dallas 1993, writ dism d w.O.J.).
A trial court has broad discretion in ruling on special exceptions. See Sonnichsen,
221 S.W.3d at 635; see also West Orange—Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558,
583 (Tex. 2003). A trial courts ruling on special exceptions is reversed only if there has
been an abuse of discretion. Martin i’. Clinical PathologvLahs., Inc., 343 S.W.3d 885. 891
(Tex. App.—-Dallas 2011, pet. denied); Adams v. First Nat’i Bank of Belis/Savov, 154
S.W.3d 859. 876 (Tex. App.—Dallas 2005. no pet.). However, even under the abuse of
discretion standard, we review the trial court’s detenjiination of legal questions de novo.
Martin, 343 S.W.3d at $91; Moellerv. Blanc, 276 S.W.3d 656.660—61 (Tex. App.—Dallas
2008, pet, denied). When a trial court dismisses a case on special exceptions for failure to
state a cause of action, we review that determination of law de novo. Filip v. Till. 230
S.W.3d 197. 203 (Tex. App.—Houston [14th Dist.l 2006. no pet.); Pack v. Crossroads, Inc.,
53 S.W.3d 492, 507 (Tex. App.—Fort Worth 2001, pet. denied). We accept as true all
material factual allegations and all factual statements reasonably inferred from the
allegations set forth in Gatten’s pleadings. Sorokolit v. Rhodes. 889 S.W.2d 239, 240 (Tex.
1994); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773. 783 (Tex.
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App.—DalIas 1992. writ denied). If a pleading does not state a cause of action, the trial
court does not err in dismissing the entire case, Pack, 53 S.W.3d at 507; Cole. $64 S.W.2d
at 566.
B. APPLICABLE LAW
To prevail on her negligence causes of action, appellant was required to prove: (1)
appellees owed a legal duty to appellant; (2) appellees breached that duty; and (3) the breach
proximately caused appellant’s injury. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.
2006). Whether a duty exists is a threshold inquiry and a question of law; liability cannot
he imposed if no duty exists. Trammell Crow Cent, Tex., Ltd. ‘. Gutierrez, 267 S.W.3d 9,
12 (Tex. 2008); Loram Maint. of Way, Inc. v. lanni, 210 S.W.3d 593, 598 n.5 (Tex. 2006)
(quoting Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). “As
a general rule, a person has no legal duty to protect another from the criminal acts of a third
person or control the conduct of another.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex.
1996); see also Trammeli Crow, 267 S.W.3d at 12; Newsom v. B.B.. 306 S.W,3d 910, 913
(Tex. App.—Beaumont 2010, pet, denied).
Texas law has recognized limited exceptions to the general rule of non-liability. See
Newsom, 306 S.W.3d at 913. The existence of a special relationship may impose a duty to
control a third party’s conduct. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331
(Tex. 2008); Torrington Co. v. Stutzrnan, 46 S.W.3d 829, 837 (Tex. 2000). Examples of
relationships that have been recognized as giving rise to a duty to control include
employer/employee, parent/child, and independent contractor/contractee. See Greater
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Houston, 801 S.W.2d at 525. A defendant in control of a dangerous person may owe a duty
ot care to persons toreseeahly exposed to danger arising from the defendant’s failure to
reasonably exercise his right of control, Texas Home Mgmt., Inc. v. Peavv, 89 S.W.3d 30.
38 (Tex. 2002). However, the scope of the duty is commensurate with the right of control
and the extent of the danger. Id.
Texas courts have also determined that a party who negligently creates a dangerous
situation has a duty to attempt to prevent injury to others if it reasonably appears or should
appear that others in the exercise of their lawful rights may be injured thereby. Carter v,
Abbvad, 299 S.W.3d 892, 895 (Tex. AppAustin 2009, no pet.) (citing SrnithKline
Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995)). “However, a mere bystander
who did not create a dangerous situation generally is not required to intervene and prevent
injury to others.” Id. In determining whether appellees were under a duty, we consider
several interrelated factors including the risk, foreseeability, and likelihood of injury
weighed against the social utility of the actor’s conduct, the magnitude of the burden of
guarding against the injury, and the consequences of placing the burden on appellees. See
Texas Home Mgint.,89 S.W.3d at 33; see also Greater Houston, 801 S.W.2d at 525.
A complaint that a property owner failed to provide adequate security against criminal
conduct is ordinarily a premises liability claim. Timberwalk Apts., Partners, Inc. v. Cain,
972 S.W.2d 749, 753 (Tex. 1998); West v. SMG, 318 S.W.3d 430, 437—38 (Tex.
App.—Houston list Dist.1 2010, no pet.). Premises liability is a special form of negligence
where the duty owed to the plaintiff depends upon the status of the plaintiff as an invitee,
licensee, or trespasser. Titnherwalk, 972 S.W.2d at 753; Tar/or v. Louis, 349 S.W.3d 729,
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734 (Tex. App.—Houston [14th Dist.1 201 1, no peL). A social guest is generally classified
as a licensee, not an invitee. Wvckoffv. George C. Fuller Contracting Co., 357 S.W.3d 157,
164 (Tex. AppDallas 2011, no peL); McClure V. Rich, 95 S.W.3d 620, 624 (Tex.
App.—Dallas 2002, no pet.). A property owner has a duty not injure a licensee by willful,
wanton, or grossly negligent conduct and, in cases in which the property owner has actual
knowledge of a dangerous condition unknown to the licensee, to either warn the licensee of
the condition or make the condition reasonably safe, City of Dallas v. Reed, 258 S.W.3d
620, 622 (Tex. 2008); American Indus. Lif Ins. Co. v. Ruvalcaha, 64 S.W.3d 126, 134
(Tex. App.Houston [14th Dist.1 2001, pet. denied). With regard to the criminal acts of
third parties, courts consider not only whether the danger was foreseeable, but also whether
it was foreseeable that the danger would harm a particular plaintiff or one similarly situated.
See Taylor, 349 S.W.3d at 734.
C. APPLICATION OF LAW To FACTS
Appellant attempts to avoid the general rule of non-liability by persuading this Court
that appellees owed her a duty because: (1) they had control over Rosser; (2) they created
the dangerous situation by inviting appellant and her husband to their home for a party
where they knew Rosser would be present; and (3) they had prior knowledge of the Rosser’ s
intentions and could have warned appellant.
1. Control
Although appellant notes in her pleadings that Rosser was employed by appellees,
and is the brother of appellee Tammy McCarley, appellant does not contend that the
existence of a special relationship between Rosser and appellees (employer/employee or
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sibling) imposes a duty upon appellees to control Rosser’s conduct. Instead, appellant
asserts that appellees had a duty to control Rosser because they had prior knowledge of
Rosser’s intention to pick a fight with Terry Gatten and could have had Rosser removed
from their house before the Gattens arrived at the party. Appellant does not cite any
authority establishing a legal duty by social hosts to control their guests and prevent them
from inflicting injury on other guests. Texas courts have declined to impose such a duty on
social hosts. See Caner, 299 S.W.3d at 897—98; see also Graff v. Beard, 858 S.W.2d 918,
920-22 (Tex. 1993) (social hosts had no duty to prevent their intoxicated guests from
inflicting injury on others). Given the absence of a special relationship between appellees
and Rosser that imposes a duty upon appellees to control Rosser, and the lack of authority
establishing a legal duty by social hosts to control their guests, we conclude appellees had
no duty to control Rosser.
2. Creation of Dangerous Condition
Appellant also contends that by inviting appellant and her husband to their home for
a party where they knew Rosser would be present, appellees created a dangerous condition
from which they had a duty to protect appellant and her husband. A party who negligently
creates a dangerous situation has a duty to attempt to prevent injury to others if it reasonably
appears or should appear that others in the exercise of their lawful rights may be injured
thereby. Caner, 299 S.W.3d at 895 (citing SmithKline Beecham, 903 S.W.2d at 353).
However, the pleadings do not indicate that appellees learned of Rosser’s threat prior to
inviting Terry Gatten to the party at their home. Thus, the act of making the invitation did
not create a dangerous situation. Considering only the evidence favorable to Cherilyn
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iatten and the reasonable inferences ihereirom, we [md there is no evidence that appellees
created a daneiotis situation I invitin the ( iattens to their party, knowing that Rosser
would he present at the party.
3. Premises Liability
Property owners owe a duty to those who may be harmed by the criminal activities
of others on their property only if “the injury he of such a general character as might
reasonably have been anticipated” and the injured party is “so situated with relation to the
wrongful act that injury to him or to one similarly situated might reasonably have been
toreseen.” Nixon v. Mr. Prop. Mgmt. Co., Inc.. 690 S.W.2d 546. 55 1 (Tex. 1985) (quoting
Curer v. Pure Di,strib. Coip.. 133 Tex. 31. 35. 124 S.W.2d $47. $49 (1939)). Thus, we
evaluate foreseeahil ity by considering both the torseeabihty of the particular criminal
conduct and the foreseeability that appellant or someone similarly situated would be harmed.
See Tar/or, 349 S.W.3d at 734—35. Problematically, appellant’s allegations are not specific
as to the nature of the risk posed, the foreseeability of the result, and the likelihood of injury.
The pleadings give no indication that Rosser’ s stated intention should have been taken
seriously. We know that Rosser and Cherilyn Gatten’s husband worked together but the
pleadings contain no mention of prior altercations or bad feelings between the two men. The
pleadings indicate that Rosser was unsuccessful in his first attempt to provoke a fight with
Terry Gatten. Even after Rosser attempted to provoke a fight, the Gattens remained at the
party for another two hours, apparently without incident. There is nothing in the pleadings
to suggest appellees could have foreseen that Rosser would make a second attempt to
provoke a fight with Terry Gatten. Nor is there anything in the pleadings to indicate
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appel lees could have loreseen that Rosser would strike and cause injury to Cherilyn (iatten.
Beyond general assertions that Rosser intended to provoke a fight with appellant’s husband,
the allegations do not set out what danger Rosser posed to others that appellees should have
reasonably been aware of and taken action to prevent before he actually hit Cherilyn Gatten.
There are not sufficient facts pleaded to support the imposition of a duty based on the
toreseeahility of Rosser’s ultimate actions and the perception of the likelihood of injury to
Cherilyn Gatten, Id.; see also Carter. 299 S.W.3d at 900.
4. Duty to Warn
Appellant also asserts that appellees had prior knowledge of Rosser s intentions and
had a duty to warn her, “Generally, a person’s duty to warn of a dangerous situation that the
person did not create is a moral duty, not a legal one.” Newsorn, 306 S.W.3d at 916 (citing
Buchanan v. Rose. 138 Tex. 390. 392. 159 S.W.2d 109. 110 (1942)). Superior knowledge
ot an unreasonable risk of harm presented by Rosser may justify imposing a duty on
appellees commensurate with their control of Rosser. But foreseeability alone is not
sufficient to create a duty. SmithKiine Beecham, 903 S.W.2d at 353. In this case, appellees
had no right to control the behavior of Rosser, and appellant has not identified an affirmative
act by appellees that created an unreasonable and foreseeable risk of harm to appellant.
Because liability for a criminal act committed by a third party cannot he based upon
foreseeability alone, in the absence of control or a right of control, we hold that appellees
owed no duty to prevent injury to appellant resulting from the assault committed by Rosser.
Accordingly. we conclude appellees had no duty to intervene or warn appellant that Rosser
intended to provoke a fight with her husband. See Carter. 299 S.W.3d at 895: see also
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,Vewcom, 306 S.W d at ‘>16,
CONCLUSION
For the reasons above, we conclude the trial court did not err in granting appellees’
special exceptions to appellant’s third amended petition and dismissing the claims against
appellees for failure to state a cause ol action. We affirm the judgment of the trial court.
M\ ‘IN RICHTER
JUSTICE
111 138F.P05
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(fliitrt iii Aipca1
Fi1tI! tiitrirt nf Lcxai at Oa1Lz
JUDGMENT
(11lRlLYN (i\FTEN. Appellant Appeal Ironi the 366’ District Court of
Collin County. Texas. (Tr.Ct.No. 366-
N. 05-I i-oi i3-cv V. 0244 1 -2009).
Opinion delivered by Justice Richter,
WINDELL MCCARLEY AND TAMMY Justices Bridges and Lang participating.
MCCARLEY. Appellees
In accordance with this ( ‘ourfs opinion ol this date. the judgment of the trial court is
AFF1RME!). It is ORDEREI) that appellees WINDELL MCCARLEY AND TAMMY
MCCARLEY recover their costs of this appeal from appellant CHERILYN GATTEN.
Judgment entered January 30. 201 3
4
MA1XlN RlCHTER’
PA
JUSTICE