Juan Herrera v. Smith Farms, Inc.--Appeal from 155th District Court of Fayette County

Herrera v. Smith Farms, Inc. TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00622-CV
Juan Herrera, Appellant
v.
Smith Farms, Inc., Appellee
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NO. 94V-020, HONORABLE DAN R. BECK, JUDGE PRESIDING

Appellant Juan Herrera appeals from a summary judgment granted in favor of appellee Smith Farms, Inc., on Herrera's claim of premises liability. We will affirm the trial court's judgment.

 
BACKGROUND

On October 4, 1991, Herrera, an employee at the Smith Farms plant near Flatonia, decided to leave the plant for his dinner break. He got into his car in the parking lot and drove down a gravel road leading across Smith Farms's property to the highway. At a curve in the road, Herrera's car skidded, causing him to lose control of the car and crash into a utility pole. Herrera brought this suit for his resulting injuries on a theory of premises liability. Herrera claimed that he was an invitee on the Smith Farms property and that Smith Farms failed to use ordinary care to protect him from the dangerous condition of the gravel road about which it knew or should have known.

Smith Farms moved for summary judgment on three grounds: (1) that the gravel road was not a dangerous condition which created an unreasonable risk or harm; (2) that Smith Farms had no actual or constructive knowledge of any alleged dangerous condition of the road; (3) and that Smith Farms did not breach any duty owed to Herrera because he was a licensee rather than an invitee at the time of the accident. After a hearing, the trial court granted Smith Farms's motion for summary judgment without specifying the particular basis upon which it relied. On appeal, Smith Farms abandons the third basis in its motion and concedes Herrera's third point of error that he was an invitee. Herrera appeals from the summary judgment.

 
STANDARD OF REVIEW

The standards for reviewing a motion for summary judgment are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If a defendant who moves for summary judgment disproves, as a matter of law, one required element of the plaintiff's cause of action, the defendant is entitled to summary judgment. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The burden then shifts to the nonmovant to present summary judgment evidence which raises a fact issue. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). When, as in this case, the trial court grants summary judgment without specifying the particular basis upon which it relied, summary judgment will be affirmed if any of the theories advanced support the judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

 
PREMISES LIABILITY

For a landowner to be held liable to an invitee, the invitee must prove that: (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the landowner knew or reasonably should have known of the condition; (3) the landowner failed to exercise ordinary care to protect the invitee from injury; and (4) the landowner's failure was a proximate cause of the invitee's injury. State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237. Herrera complains in his first point of error that summary judgment was improper because the gravel road was a condition that posed an unreasonable risk of harm to him and Smith Farms failed to prove otherwise as a matter of law.

A condition creates an unreasonable risk of harm if "there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d. 752, 754 (Tex. 1970). "[T]he fact an accident happens is no evidence that there was an unreasonable risk of such an occurrence." Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1968); see also H.E. Butt Grocery Co. v. Godawa, 763 S.W.2d 27, 30 (Tex. App.--Corpus Christi 1988, no writ) (occurrence of accident not of itself evidence of negligence). However, evidence of a defect that caused an invitee's accident or evidence of previous accidents attributable to the same condition is some proof of an unreasonably dangerous condition. See Seideneck, 451 S.W.2d at 754.

The Texas Supreme Court recently held that a common and ordinary condition of land is not an unreasonably dangerous condition. See Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 161 (Tex. 1992). Izaguirre involved a worker killed while loading a trailer. During loading, the trailer had been disconnected from its cab and left to rest on its extendable front supports. A board had been placed under one of the front supports to prevent it from sinking into the muddy ground. The board broke, causing the trailer to fall to one side and the trailer's cargo to shift. The shifting cargo crushed and killed the worker. Id. at 160. The Izaguirre plaintiffs argued that the wet and muddy ground constituted an unreasonably dangerous condition. The plaintiffs admitted that the ground was ordinary dirt, but contended that the ground should have been surfaced with a harder material. Id. The court held that "[p]lain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property." Id.

In the instant cause, Herrera complains that the loose gravel on an ordinary gravel road created an unreasonably dangerous condition. However, Hank Novak, general manager of Smith Farms, testified by affidavit that the road was regularly maintained and contained no ruts, dips, or dangerous conditions of any kind. Moreover, Herrera testified by deposition that the Smith Farms road was an ordinary gravel road and that he did not think anything special about the road made it unusually dangerous or more dangerous than other gravel roads.

The only evidence Herrera offered in response to Smith Farms's motion for summary judgment was the affidavit of Jose Ortiz. Ortiz stated that on one occasion his car skidded while he was driving on the same gravel road in question. However, Smith Farms submitted evidence in reply showing that Ortiz's skid occurred on a different section of the road outside Smith Farms's property. Ortiz's affidavit fails to indicate the cause of his skid or to specify a flaw of the entire road that could have caused both incidents. Ortiz does not suggest that the site of Herrera's accident was more dangerous than any ordinary gravel road. Ortiz's affidavit provides no competent evidence to controvert Smith Farms's conclusive evidence that the portion of the road where Herrera's accident occurred was not unreasonably dangerous.

Herrera argues that the present case is distinguishable from Izaguirre because Izaguirre involved dirt, a naturally occurring condition, while a gravel road is man-made. However, the supreme court did not limit its holding to natural conditions; rather, it noted that a landowner could be liable for "`any condition, whether natural or artificial, which involves an unreasonable risk of physical harm to persons on the land.'" Izaguirre, 829 S.W.2d at 161 (quoting Restatement (Second) of Torts 358(1)). (1) Other Texas courts have held that common and ordinary man-made conditions are not unreasonably dangerous. (2)

Herrera also contends that this case differs from Izaguirre because a road, unlike dirt, involves a number of different factors such as slope and curvature. Nevertheless, Herrera presented no controverting summary judgment evidence indicating anything unusual about the slope or curvature of the Smith Farms road rendering it more dangerous than an ordinary road. Herrera also argues that the Smith Farms road could have been surfaced with a different material. Whether Smith Farms could have surfaced the road with another material is relevant to whether Smith Farms used ordinary care to protect invitees; however, Herrera must establish that a condition of Smith Farms's premises created an unreasonable risk of harm before he can argue that Smith Farms failed to use ordinary care. See Payne, 838 S.W.2d at 237.

Following Izaguirre, we see no reason why ordinary gravel poses a greater risk of harm than ordinary dirt. We hold that the summary judgment evidence conclusively established that the gravel road did not create an unreasonable risk of harm. Appellant's first point of error is overruled. Since our determination that the road was not an unreasonably dangerous condition will support the summary judgment, we need not address appellant's remaining points of error. See Carr, 776 S.W.2d at 569.

 
CONCLUSION

The summary judgment evidence conclusively established that the Smith Farms road was an ordinary gravel road and that the road did not constitute a condition creating an unreasonable risk of harm. Since Smith Farms disproved a required element of Herrera's premises liability cause of action, we affirm the trial court's summary judgment.

 

Marilyn Aboussie, Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: March 15, 1995

Do Not Publish

1. Restatement (Second) of Torts 358(1) addresses the liability of a landlord to third parties for failure to disclose an unreasonably dangerous condition to a tenant, which was the issue in Izaguirre. Although the current case does not arise in a landlord/tenant context, the issue of whether a condition is unreasonably dangerous is the same in both situations.

2. See Seideneck, 451 S.W.2d at 754-55 (rug did not present unreasonable risk of harm as a matter of law); Mize v. Lavender, 407 S.W.2d 856, 859 (Tex. Civ. App.--Eastland 1966, writ ref'd n.r.e.) (allegation that carpet was too thick was no evidence of an unreasonably dangerous condition); Camp v. J.H. Kirkpatrick Co., 250 S.W.2d 413, 418 (Tex. Civ. App.--San Antonio 1952, writ ref'd n.r.e.) (water and dust tracked in from street during moderate rain was "normal and natural" condition and not proof of a dangerous condition); Wilson v. Werry, 137 S.W. 390, 392 (Tex. Civ. App.--Dallas 1911, writ ref'd) (floors constructed of unpolished marble are usual and customary in similar buildings and are not unreasonably dangerous).