Nancy Alarcon v. Bed, Bath & Beyond, Inc.--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00551-CV
Nancy ALARCON,
Appellant
v.
BED, BATH & BEYOND, INC.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-07706
Honorable David Peeples, Judge Presiding (1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 30, 2004

AFFIRMED

Nancy Alarcon appeals the take-nothing judgment in her premises liability suit against Bed, Bath & Beyond. We affirm the trial court's judgment.

1. Bed, Bath & Beyond moved for summary judgment on the ground that it was not liable under a premises liability theory because it is not an owner or occupier of the sidewalk where Alarcon was attacked. See CHM Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 1999) (reciting elements of premises liability claim, including owner's or occupier's actual or constructive knowledge of premises condition). Bed, Bath & Beyond based its argument on sections 13(a) and 1(b) of its lease agreement with its landlord, Smokestack Partners, Inc. Section 13(a) provides that the "Landlord hereby undertakes and assumes all duties and responsibilities in regard to ... security and control of all Common Areas," which are defined as "[a]ll areas which are, from time to time, available for the joint use and benefit of Tenant and other tenants of the [Alamo Quarry Market] Shopping Center ... and their respective employees, agents, ... customers and other invitees, including but not limited to any and all parking areas, parking spaces, ... [and] sidewalks ...." Pursuant to the plain language of the lease agreement, Bed, Bath & Beyond does not own, occupy, or control the sidewalk where Alarcon was attacked. See Wilson v. Texas Parks and Wildlife Dep't, 8 S.W.3d 634, 635 (Tex. 1999) ("As a rule, to 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."). Alarcon argues, however, that a fact issue is raised by section 13(a) of the lease agreement, which provides that "[n]otwithstanding Landlord's obligation to provide security for the Common Areas, Tenant acknowledges that the same is not to be construed as a warranty by Landlord that no acts of vandalism or other criminal activity will occur, but does obligate Landlord to provide that level of security services which is similar to the level of security services provided from time to time by other landlords in the State of Texas which own shopping centers which are comparable in size and quality to the [Alamo Quarry Market] Shopping Center." Alarcon argues "this language raises a fact issue," because it notified Bed, Bath & Beyond that "the management company could not protect against all criminal activity" and that "its customers faced the threat of criminal assault." Alarcon also draws support for her argument by the lease's failure to state that "individual tenants may not walk customers to their cars or employ their own security personnel." We again disagree. When read in its entirety, it is clear that the parties intended that landlord to "undertake[ ] and assume [] all duties and responsibilities in regard to ... security and control of all Common Areas ...."

3. Alarcon next argues that the lease agreement supports an inference that Bed, Bath & Beyond "was an 'occupier' of the premises to some degree," because section 13 ) of the lease agreement obligates Bed, Bath & Beyond to pay its "Pro Rata Share of the reasonable costs .... paid by Landlord to operate, maintain and repair Common Areas." We again disagree. When read in conjunction with section 13(a), the payment of "Common Area Charges" does not support an inference that Bed, Bath & Beyond exercised control over the sidewalk sufficient to confer a duty upon it to provide security. See, e.g., Wilson, 8 S.W.3d at 635.

4. Alarcon next argues that a material issue of fact was raised "as to whether the area where [she] was attacked was even under the definition of the 'Common Areas' as they are defined in the [l]ease agreement," because the sidewalk provides a benefit to Bed, Bath & Beyond and its customers only. We again disagree. Section 1(b) of the lease agreement expressly and unequivocally defines "Common Areas" to include "any and all ... sidewalks ...."

5. Finally, Alarcon argues that a fact issue was raised "as to whether Bed, Bath & Beyond had a right of control over the area where Alarcon was attacked," because the store provides shopping carts for use by its customers; and, "from time to time, employees will leave the store to collect these carts." However, Alarcon cites no authority, and we find none, that the ability to take shopping carts from the store to the parking lot or vice versa diminishes the effect of the express provision in section 1(b) of the lease defining the sidewalks and parking lots as "common areas."

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

1. Although the Honorable Andy Mireles is the judge presiding in the 73rd Judicial District Court, Bexar County, Texas, the Honorable David Peeples, the judge presiding in the 224th Judicial District Court, Bexar County, Texas, signed the summary judgment; The Honorable Pat Boone, the judge presiding in the 57th Judicial District Court, Bexar County, Texas, signed the severance order that made the summary judgment final.