Allen Bridges and Kathy Bridges v. H. E. Butt Grocery Company--Appeal from 167th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-152-CV
ALLEN BRIDGES AND KATHY BRIDGES,

APPELLANTS

 
vs.
H. E. BUTT GROCERY COMPANY,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 421,979-A, HONORABLE WILL WILSON, JR., JUDGE PRESIDING

Appellants, the Bridges, filed suit against H. E. Butt Grocery Company (H.E.B.) and Louis Robles to recover damages for personal injuries Kathy Bridges and her children sustained when Robles shot out their car's rear window in an H.E.B. parking lot. H.E.B. moved for summary judgment on the grounds that it owed no duty to appellants to protect or warn them against the tortious conduct of a third party. The trial court granted H.E.B.'s motion and severed the action against H.E.B. from the action against Robles. The Bridges appeal the summary judgment. We will reverse the judgment and remand the cause to the trial court.

The summary judgment proof showed that on March 31, 1989, at about 9:30 p.m., the assistant manager of an H.E.B. store received a phone call from an unidentified male who threatened the assistant manager with bodily injury and threatened to "blow up the store" due to his wife's poor treatment at the store. H.E.B. employees did not report the threat to the police or to the store's security personnel or take any other action to protect or warn its employees or patrons. The next day, as Kathy Bridges and her three children loaded groceries into their car, Louis Robles, who had been drinking, drove at a high rate of speed into the H.E.B. parking lot, skidded to a stop, and fired his shotgun, shattering the back window of the Bridges' car and injuring them.

A defendant who moves for summary judgment without asserting an affirmative defense bears the burden of showing that no genuine issue of material fact exists as to at least one element of each of the plaintiff's causes of action and that it is entitled to judgment as a matter of law. Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex. 1987); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). In deciding whether there is a disputed material fact issue, we will take as true all evidence favorable to the non-movant and will resolve any doubt and make every reasonable inference in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

The common law doctrine of negligence consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Greater Houston Transp. Co., 801 S.W.2d at 525; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex. 1983).

Appellee moved for summary judgment on the basis that it did not owe appellants a duty to protect them from the accident that caused their injuries. In a single point of error, appellants complain that the trial court erred in granting H.E.B.'s motion for summary judgment because "there is a genuine issue of material fact as to the duty H.E.B. owed" them. We hold that appellee failed to establish conclusive facts surrounding the occurrence in question from which no duty could arise as a matter of law.

An invitee is one who "enters on another's land with the owner's knowledge and for the mutual benefit of both." Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). Clearly, appellants were invitees. An occupier of business premises is not an insurer of the safety of his invitees, but owes them a duty of reasonable care. Rosas, 518 S.W.2d at 536; Garner v. McGinty, 771 S.W.2d 242, 244 (Tex. App. 1989, no writ); Hendricks v. Todora, 722 S.W.2d 458, 461 (Tex. App. 1986, writ ref'd n.r.e.). A business invitor owes a duty to his business invitees to take reasonable steps to protect them from injuries intentionally caused by third parties if he knows or has reason to know, from what he has observed or from past experience, that criminal acts are likely to occur, either generally or at some particular time. Garner, 771 S.W.2d at 246; see also Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 625 (Tex. Civ. App. 1979, writ ref'd n.r.e.).

In determining whether the defendant owed any duty under the circumstances, the court will consider several interrelated factors, including the risk, reasonable 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 the defendant. Greater Houston Transp. Co., 801 S.W.2d at 525; Otis, 668 S.W.2d at 309. Foreseeability of the risk is the foremost and dominant consideration. Greater Houston Transp. Co., 801 S.W.2d at 525; El Chico, 732 S.W.2d at 311.

Appellee contends that, under the facts shown, it owed no duty to the Bridges. Appellants concede that, were it not for the threatening phone call, H.E.B. would have had no reason to know that an incident was likely to occur; thus, the parking lot shooting would have been unforeseeable, and appellee would have been under no duty to protect appellants from Robles's acts. The record reveals, however, that the material facts surrounding the occurrence in question are disputed and depending upon their resolution, could give rise to a duty on the part of H.E.B.

H.E.B. argues that the phone call and the shooting were unconnected, so that the former gave H.E.B. no reason to know that the latter might occur. In support of this argument, appellee relies upon Robles's testimony that he held no grudge against H.E.B., that he made no threatening calls to H.E.B., and that the shooting was an accident. In determining the weight that may be given to Robles's testimony, we look to Rule 166a which provides in relevant part:

 

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

 

Tex. R. Civ. P. Ann. 166a (c) (Supp. 1991). Testimony is capable of being "readily controverted" when it is of a nature which can be effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).

Assuming appellant must somehow connect the incident to the call, Robles's testimony that he did not make the phone call does no more than raise a fact issue about the matter. Robles faced considerably greater civil and criminal liability for an intentional shooting as opposed to an accidental one. As an interested witness, his statement does not conclusively prove that he did not make the threatening phone call because this self-serving testimony could not have been readily controverted. The value of Robles's testimony, therefore, depends on his credibility. When the deponent's credibility is likely to be a dispositive factor in the resolution of the case, summary judgment is inappropriate. Casso v. Brand, 776 S.W.2d at 558.

The record contains other proof concerning the phone call. In an undated affidavit, James W. Dwyer, the assistant store manager, claimed that he received the threatening call four or five days before the shooting, and that the caller did not have an Hispanic accent, but spoke with "a slight black dialect." Robles is Hispanic, but the record does not reflect his accent, if any. Appellant's summary judgment proof, however, which we must take as true, contradicts Dwyer's affidavit. According to the affidavit of William R. Mauldin, the investigating police officer who interviewed Dwyer on the day after the shooting, Dwyer reported to Mauldin that he received the call about 9:30 p.m. on the evening before the shooting, that Dwyer assumed that the caller was black or Hispanic, and that when he listened to Louis Robles speak, Dwyer could not say whether Robles had made the threatening call. Appellee has failed to demonstrate that the call and the shooting could not have been related.

Appellee characterizes the shooting as an accident, again based on Robles's self-serving, controverted deposition testimony that he had acted without criminal intent. Summary judgment based on the self-serving statements of interested parties is inappropriate where intent is in issue. Allied Chemical Corp. v. DeHaven, 752 S.W.2d 155, 158 (Tex. App. 1988, writ den.); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex. App. 1986, no writ); Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 231 (Tex. App. 1982, writ ref'd n.r.e.). Indeed, summary judgment is rarely appropriate at all on the issue of intent. Hunt, 711 S.W.2d at 79; see also Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963).

Robles's version of the facts is further contradicted by other witnesses. Robles denied that he drove fast into the H.E.B. parking lot or that there was an H.E.B. employee or anyone else in the area where he stopped. He stated that when he parked his truck, the gun, which had been leaning against his leg, moved to the side. The gun accidentally discharged as he picked it up to move it into a gun pouch behind his seat. This testimony is contradicted by the affidavit of Rodney Bryant, the off-duty police officer who happened to be in the lot at the time and who reached Robles immediately after the shooting:

 

While walking, I saw a small brown pickup driven by a Hispanic male, come from northbound to eastbound in the parking lot, and in the area barricaded off for vehicle traffic. The rear tires of the vehicle were spinning, and it was fishtailing at a high rate of speed for a private parking lot with extensive pedestrian traffic in this area. The driver of the pickup slammed on his breaks (sic) as he approached the east entrance to H.E.B., and skidded to a halt. As the vehicle came to a stop, I observed an employee of H.E.B., who had an orange flag in his hand, approach the vehicle on the passenger side. When the employee walked up to the vehicle, he leaned over and said something to the driver. I then saw the employee push away from the vehicle quickly, as if to get out of the way of something. I then heard a loud bang. . . .

 

Such conduct could be consistent with someone acting intentionally.

The record shows that H.E.B. received a threatening call; the next day, Robles shot at appellants in the H.E.B. lot. If the call was unrelated to the incident, if the shooting was unintentional and accidental, or if the shooting were to remote from the act threatened to be reasonably foreseeable, H.E.B. may have owed no duty to appellants. If the call was a threat intentionally carried out by Robles in a foreseeable manner, however, H.E.B. may have had a duty to protect appellants against such risk. Whether appellants can prove facts which would give rise to liability on the part of H.E.B. remains for a jury to decide. We do not hold that threatening phone calls give rise to a duty to protect invitees against every random injury that may occur for an unlimited period of time. Appellee, however, has failed to carry its burden to establish undisputed facts conclusively negating the existence of any duty in this instance. Thus, we cannot say that appellee has proven, as a matter of law, that it owed no duty to appellants. The summary judgment, therefore, was improper.

The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

 

Marilyn Aboussie, Justice

[Before Justices Powers, Aboussie and Kidd]

Reversed and Remanded

Filed: July __, 1991

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