Becky Smith v. Gerald Brittain

NO. 12-19-00397-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BECKY SMITH, § APPEAL FROM THE 123RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
GERALD BRITTAIN,
APPELLEE § SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
Becky Smith appeals a summary judgment order entered in favor of Gerald Brittain. In a
single issue, Smith urges the trial court erred in granting summary judgment. We reverse and
remand.
BACKGROUND
Brittain was diagnosed with Parkinson’s and needed home health care due to his physical
limitations. Smith, Brittain’s stepdaughter, stayed at Brittain’s house and handled his care and
maintenance. This consisted of mopping, sweeping, cleaning dishes, preparing meals,
maintaining the yard, transporting Brittain to and from medical appointments, managing his
finances and payment of his medical bills, and filing his taxes. Smith had been handling
Brittain’s care and maintenance for years when, in May 2015, he executed a durable power of
attorney in Smith’s favor. Smith stayed at Brittain’s house for approximately two weeks at a
time when she was not traveling with her husband for his work. While at Brittain’s home, Smith
stayed in a room that had been converted from a carport. The converted carport contained
Smith’s bedroom and a laundry room. The carport was only accessible via a homemade ramp.
The ramp allowed Brittain to access the laundry room via the handrails when Smith was not in
the home. The ramp is described as a piece of plywood affixed to two stairs with a handrail and
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covered with indoor/outdoor carpet. Smith and her granddaughter had slipped on the ramp in the
past, and Smith described the ramp as steep and slippery. However, Brittain refused to allow
Smith to remove the ramp.
On July 31, 2015, Smith checked on Brittain, who was watching television, around 11:30
p.m. When she attempted to return to her room, she slipped on the ramp and was injured. She
suffered facial fractures and a fractured wrist, all of which required surgery.
Ultimately, Smith sued Brittain alleging that the ramp constituted a premises defect. She
urged that she was either a licensee or invitee and the ramp was an unreasonably dangerous
condition. Brittain filed a traditional motion for summary judgment alleging that Smith was a
licensee as a matter of law and that her knowledge of the allegedly dangerous condition
precluded his liability. Smith responded that she was an invitee and her knowledge did not
preclude liability under the necessary use exception. Following two hearings and supplemental
briefing, the trial court granted the motion for summary judgment without specifying the
grounds. This appeal followed.
MOTION FOR SUMMARY JUDGMENT
In her sole issue, Smith urges the trial court erred in granting summary judgment.
Specifically, she contends that fact issues remain regarding her status as an invitee or licensee.
She further argues that fact issues exist regarding the power of attorney’s effect.
Standard of Review
The standard for reviewing a traditional summary judgment is well-established. The
movant for traditional summary judgment bears the burden of showing the absence of a genuine
issue of material fact and an entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c).
When the movant seeks summary judgment on a claim in which the nonmovant bears the burden
of proof, the movant must either negate at least one essential element of the nonmovant’s cause
of action or prove all essential elements of an affirmative defense. See Randall’s Food Mkts.,
Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant establishes a right to
summary judgment, the burden shifts to the nonmovant to respond to the motion and present the
trial court with any issues that would preclude summary judgment. See City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Generally, a trial court may not
consider summary judgment evidence not referenced in or incorporated into the motion. Fed.
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Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236 (Tex. App.—Houston [14th Dist.]
2014, no pet.).
We review the record de novo and in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the motion. See Sudan v.
Sudan, 199 S.W.3d 291, 292 (Tex. 2006). All theories in support of or in opposition to a motion
for summary judgment must be presented in writing to the trial court. See TEX. R. CIV. P.
166a(c). If the trial court’s order does not specify the grounds on which it granted summary
judgment, we affirm the trial court’s ruling if any theory advanced in the motion is meritorious.
State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Applicable Law
In Texas, a person injured on another’s property may sue the property owner or occupier
under a premises-liability theory for injuries sustained as the result of an unreasonably dangerous
condition on the premises. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Premises
liability is a special form of negligence where the degree of care the property owner owes to the
injured party depends on the status of the injured party, in relationship to the property, at the time
the incident occurred. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (citing
M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004)); Rosas v. Buddies Food Store, 518
S.W.2d 534, 536 (Tex. 1975). With respect to premises liability claims, an injured person is
classified as either a trespasser, licensee, or invitee. Wilson v. Northwest Tex. Healthcare Sys.,
Inc., 576 S.W.3d 844, 850 (Tex. App.—Amarillo 2019, no pet.).
“A person is a trespasser where he enters upon the property of another without any right,
lawful authority, or express or implied invitation, permission, or license, not in the performance
of any duty to the owner or person in charge or on any business of such person, but merely for
his own purposes, pleasures, or convenience, or out of curiosity, and without any enticement,
allurement, inducement, or express or implied assurance of safety from the owner or person in
charge.” Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936). More
recently, in a premises liability case, the Texas Supreme Court stated that “[a] trespasser at
common law was one who entered upon property of another without any legal right or invitation,
express or implied.” State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006) (citing Webster, 91
S.W.2d at 306). The only duty a property owner or occupier owes a trespasser is the duty not to
injure that person willfully, wantonly, maliciously, or as a result of gross negligence. See
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Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (citing Texas Utilities Electric Co. v.
Timmons, 947 S.W.2d 191, 193 (Tex. 1997)); see also RESTATEMENT (SECOND) OF TORTS § 333
(1965).
A licensee is a person who enters on the property of another with the owner’s or
occupier’s consent and for the licensee’s own convenience. Wilson, 576 S.W.3d at 850 (finding
that claimant was a licensee when he was injured on the premises of a hospital while visiting his
wife, a patient in that hospital). As to a licensee, a property owner or occupier owes a duty not to
injure the licensee willfully, wantonly, or through gross negligence, and, in cases in which the
owner has actual knowledge of a dangerous condition unknown to the licensee, a property owner
owes a licensee the duty to warn or make safe the dangerous condition. Id. (citing Sampson v.
Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016)). Therefore, in order to establish
liability, a licensee must prove: (1) a condition of the premises created an unreasonable risk of
harm to the licensee, (2) the owner or occupier had actual knowledge of the condition, (3) the
licensee did not have knowledge of the condition, (4) the owner or occupier failed to exercise
ordinary care to protect the licensee from danger, and (5) the owner’s or occupier’s failure was a
proximate cause of injury to the licensee. Wilson, 576 S.W.2d at 851.
An invitee is usually defined as someone who enters onto property with the owner’s
knowledge and for the mutual benefit of both parties. Rosas, 518 S.W.2d at 536. An invitee has
also been defined somewhat more broadly as someone who enters another’s property on the
business of or to the benefit of the landowner. See Cowart v. Meeks, 111 S.W.2d 1105, 1107
(Tex. 1938) (“In the absence of some relation which inures to the mutual benefit of the two, or to
that of the owner, no invitation can be implied, and the injured person must be regarded as a
mere licensee.”) (emphasis added; citation omitted); Tex. Power & Light Co. v. Holder, 385
S.W.2d 873, 885 (Tex. Civ. App.—Tyler 1964), writ ref’d n.r.e., 393 S.W.2d 821 (Tex. 1965)
(invitee is one “who goes on the premises of another in answer to the express or implied
invitation of the owner . . . on the business of the owner . . . or for their mutual advantage”)
(emphasis added).
As to an invitee, a property owner or occupier owes the same duties owed to a trespasser
or licensee; and, in addition, the property owner owes a duty to keep its premises reasonably
safe. While “the duty owed by an owner or occupier of premises to an invitee is not that of an
insurer,” the owner or occupier does owe a duty to exercise reasonable care to protect against
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danger from a condition on the premises that creates an unreasonable risk of harm of which the
owner or occupier has actual or constructive knowledge. CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 101 (Tex. 2000). The essential elements of a premises liability cause of action as to
an invitee include the following: (1) the claimant was an invitee, (2) the defendant was an owner
or occupier of the premises, (3) a condition on the premises posed an unreasonable risk of harm,
(4) the property owner or occupier knew or reasonably should have known about the condition,
(5) the defendant breached its duty of ordinary care by either (a) failing to make the condition
reasonably safe (eliminate the risk) or (b) failing to adequately warn of the premises defect
(reduce the risk), and (6) the defendant’s breach proximately caused the claimant’s injuries. Id.
at 99.
Whether an entrant is an invitee or a licensee depends on that person’s purpose in coming
onto the property. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.—Waco
1995, no writ). A property owner’s friends or family are generally treated as licensees. See, e.g.,
Knorpp v. Hale, 981 S.W.2d 469, 472 (Tex. App.—Texarkana 1998, no pet.) (noting that social
guests are treated as licensees); Dominguez v. Garcia, 746 S.W.2d 865, 866–67 (Tex. App.—
San Antonio 1988, writ denied) (same). Such cases usually involve guests who were invited to
the premises for social purposes. See, e.g., Knorpp, 981 S.W.2d at 471–72 (boyfriend of
property owners’ daughter invited to property and helped cut down tree for New Year’s bonfire);
Dominguez, 746 S.W.2d at 866 (minor child invited to property to attend birthday party);
Buchholz v. Steitz, 463 S.W.2d 451, 452 (Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.) (adult
invited to friend’s house for lunch and swim); Crum v. Stasney, 404 S.W.2d 72, 73–74, 75 (Tex.
Civ. App.—Eastland 1966, no writ) (brother-in-law of ranch’s foreman injured during visit to
ranch when he went into field to have picture taken with mule; held that even if injured man was
initially invitee, he was licensee when injured because he went beyond purposes of invitation and
business dealings).
Status and Duty
Brittain moved for summary judgment on grounds that the undisputed facts showed that
Smith was a licensee and he had no duty to warn her of the condition because Smith had actual
knowledge. In response, Smith contended that she was an invitee. Thus, the issue is whether
Brittain established as a matter of law that he owed Smith the duties of a licensee. Brittain
argues that Knorpp illustrates that a person such as Smith would be a licensee. In Knorpp, Todd
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Erwin, Autumn Hale’s boyfriend, was killed while cutting down a tree at Autumn’s parents’
house. Knorpp, 981 S.W.2d at 471. The entire discussion relating to Erwin’s status was whether
cutting down the tree met the mutual benefit test for determining his status as an invitee. Id. at
473–75. The Texarkana Court of Appeals held that Erwin was a licensee without considering or
discussing whether an activity that benefits an owner or occupier of the premises can make the
status of the helper an invitee. Id. at 475.
Contrary to the Texarkana Court’s approach, the Dallas Court of Appeals has held that an
invitee is one whose presence serves the possessor’s economic interest. Buchholz, 463 S.W.2d
at 453; McClure v. Rich, 95 S.W.3d 620, 626 (Tex. App.—Dallas 2002, no pet.). Accordingly,
when a homeowner receives an economic benefit from the presence of a person whom the
homeowner has asked to help, the person can be an invitee. See Buchholz, 463 S.W.2d at 453;
see also Smith v. Smith, 563 S.W.3d 14, 18-19 (Ky. 2018) (fact issue existed as to whether
great-grandmother was licensee or invitee); Baldwin v. Gartman, 604 So. 2d 347, 350 (Ala.
1992) (neighbor an invitee when homeowner derived benefit from neighbor coming onto land to
assist in moving slabs to form path); Atkinson v. Ives, 255 P.2d 749, 752 (Colo. App. 1953) (to
be invitee, “plaintiff would have to be on defendant’s property by invitation, express or implied,
for some purpose of interest or advantage to defendant”); Hottmann v. Hottmann, 572 N.W.2d
259, 260–61 (Mich. Ct. App. 1997) (brother an invitee when on property owner’s premises to
perform services beneficial to owner who enlisted brother’s help in installing roof); Durst v. Van
Gundy, 455 N.E.2d 1319, 1321 (Ohio Ct. App. 1982) (father an invitee when on owner’s
property at host’s invitation for purpose in which host had a beneficial interest, i.e., installation
of security light); Schlicht v. Thesing, 130 N.W.2d 763, 765–66 (Wis. 1964) (grandmother an
invitee when gratuitously performing babysitting services at request of homeowner).
Here, Smith presented summary judgment evidence that, although a relative, she was not
on the premises for a social event. She was at the home for the sole purpose of caring for her
ailing stepfather. Brittain had Parkinson’s disease, which affected his physical ability to care for
himself. Smith presented evidence that because of his condition, Brittain required around-the-
clock care. Smith’s care for Brittain included mopping, sweeping, cleaning dishes, preparing
meals, maintaining the yard, transporting Brittain to medical appointments and attending those
appointments, paying his bills, managing his finances, and filing his taxes. This care arguably
provided an economic benefit to Brittain as he did not have to pay for at-home healthcare. In
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addition, Smith arguably received a benefit in return because she was allowed to reside in
Brittain’s home. Because Smith presented evidence that she served Brittain’s economic interest,
she raised a fact issue as to Brittain’s claim that she was a licensee. See McClure, 95 S.W.3d at
626. Thus, the trial court improperly granted summary judgment on grounds that Smith was
owed the duties to a licensee.
We reach the same conclusion with respect to Brittain’s argument that, even if Smith
were an invitee, he owed her no duty because Smith asserted control over the premises under the
power of attorney, which he contends provided Smith with equal authority to control the
premises and repair the ramp.
A power of attorney creates an agency relationship, which is a fiduciary relationship as a
matter of law. Vogt v. Warnock, 107 S.W.3d 778, 782 (Tex. App.—El Paso 2003, pet. denied);
Plummer v. Estate of Plummer, 51 S.W.3d 840, 842 (Tex. App.—Texarkana 2001, pet. denied).
“When persons enter into fiduciary relations[,] each consents, as a matter of law, to have his
conduct towards the other measured by the standards of the finer loyalties exacted by courts of
equity.” Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex. 1980). Consequently, a
fiduciary owes his principal a high duty of good faith, fair dealing, honest performance, and strict
accountability. Sassen v. Tanglegrove Townhouse Condo. Ass’n, 877 S.W.2d 489, 492 (Tex.
App.—Texarkana 1994, writ denied).
Brittain urges that the power of attorney gave Smith an affirmative duty to act to repair
the alleged dangerous condition, which absolved Brittain of any duty owed to her. Brittain
points out the power of attorney vested Smith with the authority to make and pay for repairs or
alterations to the real property under the Texas Estates Code. See TEX. EST. CODE ANN.
§§ 752.102, 752.111 (West 2020). However, Brittain failed to provide any cases, and we have
found none, demonstrating that an agent under a power of attorney has any sort of affirmative
duty to act or make repairs to property. In addition, Smith presented evidence that she did not
have control over the ramp. Smith testified in her deposition that “her daddy wouldn’t let [her]”
change the ramp and that “what he says goes.” An agent under a durable power of attorney is a
fiduciary to the principal only when acting as an agent and has a duty to inform and account for
actions taken under the power of attorney. Id. § 751.101 (West 2020). The most important
presumption of agency is that the agent acts in accordance with the wishes of the principal.
Breceda v. Whi, 187 S.W.3d 148, 152 (Tex. App.—El Paso 2006, no pet.). Furthermore, the
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Estates Code explicitly states that the principal has the right to give additional instructions to or
make additional requirements of the agent. TEX. EST. CODE ANN. § 751.106 (West 2020). As a
result, it is axiomatic that the power of attorney did not grant Smith the authority to act against
Brittain’s wishes. No evidence was presented that Brittain had been declared incompetent at the
time of the request. Thus, the trial court improperly granted summary judgment on the grounds
that the power of attorney absolved Brittain of any duty owed to Smith.
Invitee Elements
Having concluded that Brittain failed to establish Smith’s status as a licensee as a matter
of law, we now review the record to determine whether Brittain established that there was no
genuine issue of material fact on the elements of a premises liability claim based on Smith’s
claim of invitee status, to wit: (1) Brittain had actual or constructive knowledge of the allegedly
dangerous condition; (2) the condition posed an unreasonable risk of harm; (3) Brittain did not
exercise reasonable care to eliminate the risk; and (4) Brittain’s acts or omissions proximately
caused Smith’s fall.
Regarding the knowledge test, Smith claims the evidence shows that Brittain was aware
of the danger because she previously asked him to replace the ramp. Smith presented deposition
testimony that she asked Brittain to replace the ramp and that he would not allow it. This
evidence at least raises a fact issue as to whether Brittain knew or should have known that the
ramp was dangerous.
As to the dangerous condition element, Brittain argued that the ramp must have been safe
because the ramp was equipped with handrails and Smith traversed it previously without
slipping. However, Smith testified that the ramp was “steep” and “slippery.” She also testified
that she and her granddaughter had slipped on the ramp in the past. Taking the evidence in the
light most favorable to Smith, a fact issue exists as to whether the ramp was an unreasonably
dangerous condition.
With regard to the reasonable care element, Brittain argued that it was actually Smith’s
responsibility to repair or replace the ramp and that Smith’s knowledge of the ramp’s dangers
negated any duty on his part to eliminate the risk. As discussed above, the power of attorney did
not confer absolute control over the premises to Smith. Smith admits that she knew the ramp
was dangerous; however, she contends that she had no alternative means to access her room. An
otherwise adequate warning is insufficient to make the premises reasonably safe when the invitee
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must necessarily use the dangerous condition and, despite the invitee’s awareness and
appreciation of the danger, the invitee is incapable of taking precautions that will adequately
reduce the risk. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 208 (Tex. 2015). The
evidence is undisputed that traversing the ramp was the only way for Smith to return to her room
in the converted carport. And her request to have the ramp replaced was denied by Brittain. As
a result, the evidence raised a fact issue on the necessary use exception.
Finally, as to proximate cause, Smith had to present evidence that the ramp was a cause
in fact of her injury and foreseeable. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).
“Cause in fact” means that the act or omission was a substantial factor in bringing about the
injury, and without it, harm would not have occurred. Id. “Foreseeability” means that the actor,
as a person of ordinary intelligence, should have anticipated the dangers that his negligent act
created for others. Id. Foreseeability does not require that the actor foresee the particular
accident or injury that in fact occurs. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223
(Tex. 1988). Nor does foreseeability require that the actor anticipate just how the injury will
grow out of a particular dangerous situation. Id. at 224. All that is required is that the injury be
of such a general character as might reasonably have been anticipated and that the injured party
be so situated with relation to the wrongful act that injury might reasonably have been foreseen.
Id. Brittain argued that Smith, not himself, was the cause of Smith’s injuries. However, we have
already rejected Brittain’s argument that the power of attorney absolves him of all potential
liability. The evidence shows that Smith fell while using the ramp, which was steep and
slippery, and that she suffered injuries when she fell. As a result, Brittain failed to conclusively
negate the causation element of the premises liability claim. Accordingly, a fact issue exists with
respect to Smith’s invitee status.
Summary
Because we have determined that Smith brought forth evidence to raise a genuine issue of
material fact on the elements of her premises liability claim, we conclude the trial court
improperly granted summary judgment in Brittain’s favor. We sustain Smith’s sole issue.
DISPOSITION
Having sustained Smith’s sole issue, we reverse the trial court’s judgment and remand
this case for further proceedings consistent with this opinion.
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JAMES T. WORTHEN
Chief Justice
Opinion delivered October 21, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2020
NO. 12-19-00397-CV
BECKY SMITH,
Appellant
V.
GERALD BRITTAIN,
Appellee
Appeal from the 123rd District Court
of Shelby County, Texas (Tr.Ct.No. 17CV34052)
THIS CAUSE came to be heard on the oral arguments, appellate record and
briefs filed herein, and the same being considered, because it is the opinion of this Court that
there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED
by this Court that the judgment be reversed and the cause remanded to the trial court for further
proceedings in accordance with the opinion of this Court; and that this decision be certified to the
court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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