Joshua Bailey v. Paseo Del Rio Association--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00853-CV

Joshua BAILEY,

Appellant

v.

PASEO DEL RIO ASSOCIATION,

Appellee

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-01801

Honorable Fred Shannon, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 9, 2005

AFFIRMED

Joshua Bailey appeals the no-evidence summary judgment dismissing his lawsuit against Paseo Del Rio Association. Arguing that more than a scintilla of evidence exists as to each claim, Bailey brings twelve issues on appeal. We affirm the trial court s judgment.

Factual and Procedural Background

On October 28, 2000, Joshua Bailey, a sixteen-year old high school student, was visiting San Antonio for a yearbook convention. While in San Antonio, Bailey attended the Haunted River Street Party and Costume Contest event sponsored by Paseo Del Rio, a non-profit organization which promotes and supports the San Antonio Riverwalk. The event was held in the South Bank parking lot in downtown San Antonio. While attending the event, Bailey played Pop-A-Balloon dart game, which was owned and operated by Paul s Concessions. The objective of the game is to pop three balloons with three darts. One of the darts Bailey threw bounced off the balloon and struck Bailey in his right eye, damaging the cornea, destroying the lens, and puncturing the retina.

Bailey sued Paseo del Rio. After conducting discovery, Paseo del Rio filed a no-evidence summary judgment motion which the trial court granted. Bailey appeals.

Standard of Review

A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App. San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Huff, 21 S.W.3d at 512. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711. However, less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion. Huff, 21 S.W.3d at 412.Argument and Authority

I. Ostensible Agency/Agency by Estoppel/Apparent Agency/Apparent Authority

In his first issue, Bailey argues he presented more than a scintilla of evidence that Paul s Concessions acted as an ostensible agent for Paseo del Rio. Ostensible agency is also known as agency by estoppel, apparent agency or apparent authority. Baptist Mem l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 n.2 (Tex. 1998). One who seeks to hold a principal liable through the agent s apparent authority must prove conduct on the part of the principal that would cause a reasonable person to believe the agent has the authority he is purporting to exercise. Rourke v. Garza, 530 S.W.2d 794, 802 (Tex. 1975). The doctrine of ostensible or apparent agency is used to prevent a principal from denying agency. Sampson, 969 S.W.2d at 947. To prove the elements of liability for ostensible or apparent agency, Bailey must show: (1) he had a reasonable belief that Paul s Concessions was an agent or employee of Paseo del Rio, (2) such belief was generated by some affirmative conduct on the part of Paseo del Rio, and (3) Bailey justifiably relied on the representation of authority. See Sampson, 969 S.W.2d at 949.

Bailey claims that the advertising materials published by Paseo del Rio led him to reasonably believe that Paul s Concessions was an agent of Paseo del Rio and further that he justifiably relied on Paseo del Rio s representations. More specifically, Bailey argues that because Paseo del Rio represented itself as host of the event but failed to disclose that Paul s Concessions was an independent contractor, Paseo del Rio is estopped from denying Paul s Concessions acted as its agent under the doctrine of apparent authority.

We hold that Bailey failed to bring forth more than a scintilla of evidence to raise a fact issue as to ostensible agency. First, the fact that Paseo del Rio posted advertising that it was hosting the event and failed to disclose its independent contractors were not its agents does not give rise to a reasonable belief that Paul s Concessions was, in fact, Paseo del Rio s agent. But, more importantly, even if it could reasonably be assumed that Paul s Concessions was Paseo del Rio s agent, there is no evidence that Bailey was misled and induced to act to his prejudice. There is no evidence that he would not have attended the event and/or played the Pop-a-Balloon game if he had known that the game was owned and operated by Paul Concessions, an independent contractor, rather than Paseo del Rio. There is simply no evidence of justifiable reliance. Thus, we overrule Bailey s first issue.

II. Joint Venture/Partnership Liability

Secondly, Bailey argues Paseo del Rio is liable through joint venture/partnership liability. Under the Texas Revised Partnership Act, a partnership or joint venture is an association of two or more persons to carry on a business for profit as owners. Tex. Civ. Stat. Ann. art. 6132b-2.02(a) (Vernon Supp. 2004-05). Factors indicating that persons have created a partnership include:

(1) receipt or right to receive a share of profits of the business;

(2) expression of an intent to be partners in the business;

(3) participation or right to participate in control of the business;

(4) sharing or agreeing to share:

(A) losses of the business; or

(B) liability for claims by third parties against the business; and

(5) contributing or agreeing to contribute money or property to the business.

Tex. Civ. Stat. Ann. art. 6132b-2.03(a) (Vernon Supp. 2004-05).

Bailey claims Paseo del Rio and Paul s Concessions intended to be partners with respect to the operation of the carnival games, sharing the profits and losses of those games. Bailey relies on the testimony of Paul Nemeth, owner of Paul s Concessions, who testified that he was initially going to pay a percentage to Paseo del Rio for operating the carnival games, but when Nemeth needed to use an electric generator because there was inadequate electricity to run the games, the fee was waived pursuant to an oral deal. Bailey claims this to be a sharing of the losses, in that Paseo del Rio would forfeit the compensation it would have received and Paul s Concessions would bear the cost of the generator. This transaction does not amount to an agreement to share losses but instead is merely evidence that the parties altered their original agreement when conditions changed. There is simply no evidence of any of the statutory factors set for in the Texas Revised Partnership Act. As such, we find no evidence that Paseo del Rio and Paul s Concessions formed a partnership or engaged in a joint venture.

Bailey s second issue is overruled.

III. Negligent Hiring

Bailey next argues that Paseo del Rio s failure to inquire into the qualifications of Paul s Concessions amounts to negligent hiring.

One hiring an independent contractor may be held responsible for the contractor s negligent acts if the employer knew or should have known that the contractor was incompetent and a third person was injured because of the contractor s incompetency. Wasson v. Stracener, 786 S.W.2d 414, 422 (Tex. App. Texarkana 1990, writ denied); see also Tex. Am. Bank v. Boggess, 673 S.W.2d 398, 401 (Tex. App. Fort Worth 1984, writ dism d by agr.). Regardless of whether the one doing the hiring inquires into the independent contractor s qualifications, however, there would be no liability unless there was also evidence that the independent contractor was incompetent. Wasson,786 S.W.2d at 422. In this case, there is no evidence that Paul s Concessions was unfit or incompetent to run the carnival game of which Bailey complains. Thus, Paseo del Rio cannot be held liable for negligent hiring.

Bailey s third issue is overruled.

IV. Negligent Activity, Negligence, Gross Negligence, and Abnormally Dangerous Activity

Bailey s allegations concerning negligent activity, negligence, gross negligence, and abnormally dangerous activity are all dependent upon Paul s Concessions s operation of the Pop-A-Balloon game. Because, as discussed above, we have found that Paseo del Rio is not responsible for Paul s Concessions under the theories Bailey plead, Paseo del Rio cannot be held liable for negligent activity, negligence, gross negligence or abnormally dangerous activity. Further, as pointed out by Paseo del Rio, the evidence upon which Bailey relies with regard to these theories was not properly before the trial court and, therefore, cannot be considered on appeal. Bailey relies on the affidavit of an expert witness, Matthew Gryzcan, who gave expert testimony as to the operation and dangers of the Pop-A-Balloon dart game. Mr. Gryzcan s affidavit, however, was not attached to any of Bailey s responses to Paseo del Rio s motions for summary judgment but rather was presented to the trial court in response to Paul s Concessions s motion for summary judgment. Thus, there is no indication in the record that the Mr. Gryzcan s testimony was presented to or considered by the trial court in ruling on Paseo del Rio s motions for summary judgment. In responding to a no-evidence motion for summary judgment, the non-movant must present evidence that raises a genuine fact issue on the challenged element. Kelly v. Demoss Owners Ass n, 71 S.W.3d 419, 425 (Tex. App. Amarillo 2002, no pet.). Accordingly, we overrule Bailey s fourth, fifth, sixth and seventh issues on appeal.

V. Third-Party Beneficiary to Contract

In his eighth issue, Bailey contends he is entitled to recover as a third-party beneficiary to the contracts between Paseo del Rio and the City (street closure agreement) and Paseo del Rio and Hixon Development Company (parking license agreement). Bailey, however, has not claimed a breach of contract nor has he produced a scintilla of evidence of a breach. We overrule Bailey s eighth issue.

VI. Nondelegable Duty

Next, Bailey argues that Paseo del Rio had a nondelegable duty to keep the premises safe for invitees, citing Exxon Corp. v. Garza, 981 S.W.2d 415 (Tex. App. San Antonio 1998, pet. denied). Exxon, however, does not stand for this proposition. The court in Exxon, although recognizing that some legal scholars have stated that the duty to keep the premises safe for invitees is nondelegable, explained that the Texas Supreme Court has, nevertheless, required the four premises defect elements to be established in premises defect cases. See id. at 421 n.1. Thus, Bailey s reliance on Exxon is misplaced, and he has failed to point to any other authorities or make any other arguments in support of his nondelegable duty argument. We overrule Bailey s ninth issue.

VII. Imputed Knowledge

In his tenth issue, Bailey contends that knowledge of a dangerous activity was imputed to Paseo del Rio. In support of his contention, Bailey relies on Wagner v. Lone Star Gas Co., 346 S.W.2d 645 (Tex. Civ. App. Texarkana 1961, writ ref d n.r.e.), and Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). Bailey fails to tell us how either of these slip-and-fall premises liability cases are applicable to this case or how any knowledge Paul s Concessions may have had regarding the Pop-A-Balloon game was imputed to Paseo del Rio. We overrule Bailey s tenth issue.

VIII. Control of the Premises

Bailey next argues that because Paseo del Rio had control of the premises pursuant to its

contracts with the City and Hixon, it had a duty to make the premises safe for invitees. Bailey cites Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997), wherein the Texas Supreme Court found that a shopping center property manager had sufficient control over the premises to trigger such duty. First, we note that Paseo del Rio s presence on the property in question does not rise to the level of property manager. Second, a review of the contracts likewise fails to show the requisite level of control. The contract with the City authorizes street closures, but the injury did not even occur on City property; rather it occurred on property owned by Hixon. And, the contract with Hixon, the parking lot license agreement, allows Paseo del Rio to use the property as set forth in the agreement; however, Bailey points to no specific terms of the contract that grant Paseo del Rio such control over the property as to trigger a duty to ensure the safety of invitees. Therefore, we overrule Bailey s eleventh issue.

IX. Equitable Estoppel

In his twelfth issue, Bailey argues that Paseo del Rio is equitably estopped from asserting the

defense of independent contractor. Bailey takes the position that Paseo del Rio cannot accept the benefits of its contracts with the City and Hixon in which it failed to disclose it would be using independent contractors for the event while at the same time taking the contrary position that it is not responsible for Bailey s injury. Estoppel arises where, by the fault of one party, another has been induced to change his position for the worse. Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex. App. Texarkana 1992, writ denied). Estoppel ordinarily requires a showing of detrimental reliance by the party asserting the theory. Id. Bailey has not presented more than a scintilla of evidence to show he relied to his detriment on Paseo del Rio s failure to disclose its use of independent contractors for the event. Thus, Bailey s twelfth issue is overruled.

Conclusion

Because Bailey has failed to raise more than a scintilla of evidence as to any of his issues on appeal, we affirm the judgment of the trial court.

Karen Angelini, Justice