IN THE
TENTH COURT OF APPEALS
No. 10-99-191-CR
JULIUS ARCHIE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 99-136-C
O P I N I O N
Julius Archie was convicted of unauthorized use of a motor vehicle, placed on probation, and subsequently had his probation revoked. From this probation revocation, Archie filed a notice of appeal. He now withdraws his notice of appeal and asks us to dismiss it.
In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:
(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.
Tex. R. App. P. 42.2(a). We have not issued a decision in this appeal. The motion is signed by Archie and his attorney. The clerk of this court has forwarded a copy of the motion to the trial court clerk. Thus, the motion meets the requirements of the Rule and is granted.
Archie’s appeal is dismissed.
PER CURIAM
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Dismissed on appellant's motion
Opinion delivered and filed February 16, 2000
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We affirm the judgment.
FACTUAL BACKGROUND
The facts are substantially undisputed. Torres started working for Peters’ Wholesale Greenhouses, Inc. (“Peters”) in December of 1990. Torres was given the option of living in a mobile home located on Peters’ property and paying Peters rent or living off-site. Torres chose the mobile home.
Torres and several other employees of Peters, who also lived on-site, would build fires on the property approximately once a month in which they would grill food, talk, and drink beer. On the night of February 3, 1996, Torres and several others built a fire near their homes. The men had finished grilling their food and were sitting around the fire, talking and drinking beer. The fire began to dwindle and one of the men, Oscar Lozano, retrieved some diesel fuel to put on the fire to keep it burning. When Lozano threw the diesel fuel on the fire, the diesel container exploded and enveloped Torres in flames. Torres suffered severe burns to his face, head, and body.
Torres sued Peters for various causes of action including, failure to provide a safe place to live and/or work, negligently supervising its employees, and failure to warn or adequately warn. The jury found that Torres was a licensee, that neither his nor Peters’ negligence was a proximate cause of his injuries, and that he did not sustain any damages.
STATUS AT THE TIME OF THE ACCIDENT
Torres’ first issue on appeal claims that the trial court erred when it submitted a question to the jury asking whether he was an invitee or licensee at the time of the accident. Torres claims that he was an invitee as a matter of law because at the time of the accident, he was a tenant using a common area and as such, was owed the duty of an invitee as a matter of law.
As part of his suit, Torres plead that Peters was negligent as his landlord, as his employer, or as a landowner. However, Torres did not request any jury questions on landlord capacity. Instead, Torres’ proposed jury charge included only a negligent activity theory of liability. Torres did object to the submission of his claim as a premises liability claim and the jury question determining his status at the time of the accident.
Torres had the burden to obtain affirmative answers to jury questions submitting necessary elements of his cause of action. Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990); Shelton Ins. Agency v. St. Paul Mercury Ins. Co., 848 S.W.2d 739, 744 (Tex. App.—Corpus Christi 1993, writ denied). Not submitting or requesting the submission of a theory of liability based upon Peters’ alleged negligence as his landlord, Torres waived his cause of action under this theory. Tex. R. Civ. P. 279 ; Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992) (holding that party’s request for jury issues and instructions, not its pleadings, determine whether party preserved his cause of action); Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991) (because plaintiff requested jury issues regarding negligence and did not request jury issues on breach of contract claim, plaintiff waived breach of contract claim).
Torres claims that at the time of the accident, his status was that of an invitee as a matter of law. The duty owed to a visitor by a land owner is determined by the status of the visitor at the time and place of the visitor’s injury. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex. App.—El Paso 1997, writ denied). When the evidence of a plaintiff’s status at the time of the accident mandates a single conclusion, we hold that the plaintiff established his status as a matter of law. Dabney v. Wexler-McCoy, Inc., 953 S.W.2d 533, 536 (Tex. App.—Texarkana 1997, pet. denied). An invitee is a person who enters upon the premises of another at the express or implied invitation of the owner or occupier for their mutual benefit or advantage. Allen v. Rogers, 977 S.W.2d 733, 736 (Tex. App.—Fort Worth 1998, pet. denied); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex. App.—Waco 1995, no writ). A licensee is one who is privileged to enter and remain on the premises by the express or implied permission of the owner. Montes, 946 S.W.2d at 105; Peerenboom, 910 S.W.2d at 163. The difference between an invitee and a licensee is that an invitee is present for the mutual benefit of himself and the landowner while a licensee is on the premises for his own purposes and not for any business dealings with the landowner. Montes, 946 S.W.2d at 106; Peerenboom, 910 S.W.2d at 163.
Torres presented evidence that he lived in a mobile home on Peters’ property and that he and the other employees occasionally built fires in front of their mobile homes. Torres did not conclusively establish that he was on Peters’ property for both his and Peters’ benefit at the time of the accident. Thus, Torres did not conclusively establish as a matter of law that his status at the time of the accident was that of an invitee. See Allen, 977 S.W.2d at 736; Peerenboom, 910 S.W.2d at 163. Because Torres’ status was not conclusively established as a matter of law, we hold that the court’s submission of a question asking whether Torres was an invitee or licensee was proper. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex. 1997) (court is entitled to decide an issue as a matter of law when there is no conflict in the evidence, but when there is conflicting evidence on either side, the issue is a fact question); see also Latham v. Castillo, 972 S.W.2d 66, 68 (Tex. 1998) (if reasonable minds could differ on the facts in question, trial court errs in refusing to submit one or more issues to the jury).
We overrule Torres’ first issue.PREMISES LIABILITY OR NEGLIGENT ACTIVITY
Torres’ second issue on appeal claims that the trial court erred when it submitted his case as a premises liability case rather than as a negligent activity case. Torres claims he was injured by a dangerous activity and not by a defect in the premises and that Peters’ alleged negligent supervision occurred contemporaneously with his injuries. We disagree.
An owner or occupier of land has a duty to use reasonable care and keep the premises under his control in a safe condition. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985). An owner may be liable for negligence for failing to keep the premises in a safe condition in two situations; those arising from an activity on the premises and those arising from a premises defect. Id. In order to recover under a negligent activity theory, the injured person must have been injured by, or as a contemporaneous result of the activity itself, rather than a condition created by the activity. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). In other words, when the plaintiff’s injuries were caused by a condition created by the defendant’s activity rather than the defendant’s activity itself, he is limited to a premises liability theory of recovery. Keetch, 845 S.W.2d at 264; Lucas v. Titus County Hosp. District/Titus Memorial Hosp., 964 S.W.2d 144, 153 (Tex. App.—Texarkana 1998, pet. denied).
Torres is correct in stating that he was injured by a negligent activity, that of Lozano pouring diesel fuel on a burning fire. However, he was not injured by the alleged negligent activity, by comission or omission, of Peters. Rather, Peters’ alleged negligence allowed Torres and the men to build a fire on Peters’ property. Torres was not injured by the building of the fire. Torres was injured when Lozano negligently threw diesel fuel onto the burning fire. Therefore, Torres could have claimed premises liability by Peters rather than negligent activity. See Timberwalk, 972 S.W.2d at 753 (plaintiff had a premises liability claim because her injuries were a result of condition—an unreasonable risk of harm which allowed intruder to break in and rape her—that was created by apartment owner’s negligence in failing to provide adequate security measures); Keetch, 845 S.W.2d at 264 (plaintiff had a premises liability claim because her injuries, sustained when she fell in a puddle near a store’s floral display, were a result of a condition created by the store’s negligent spraying and were not sustained by the activity of spraying); Exxon Corp. v. Garza, 981 S.W.2d 415, 420 (Tex. App.—San Antonio 1998, pet. denied) (plaintiff had a premises liability claim because his injuries—incurred when he saw a fire on an electrical transformer and rushed to get out of his truck and fell and injured his knee—were a result of a condition created by employer’s negligent installation of electrical transformers and not a direct result of employer’s negligent installation); Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745, 747 (Tex. App.—San Antonio 1998, no pet.) (plaintiff had a premises liability claim when he was injured because of a razor blade left in the parking lot, because his injuries were sustained as a result of a condition created by the store’s negligence in failing to keep the premises in a safe condition and was not injured by the store’s ongoing activity).
Finally, Torres’ injuries were not sustained by or as a contemporaneous result of Peters’ alleged negligent supervision. Torres cites Univiversity Preparatory School v. Huitt as dispositive of his claim that he was entitled to the submission of a negligent activity theory of liability. 941 S.W.2d 177 (Tex. App.—Corpus Christi 1996, writ denied). We disagree. In University Preparatory School, the plaintiff sued the school for negligent supervision when he injured himself after jumping into the school’s pool from a balcony. Id. The court held that the plaintiff’s injuries occurred contemporaneously with the school’s negligent supervision and thus the trial court correctly submitted the plaintiff’s claim as a negligent activity. Id. at 181. In the present case, Torres’ injuries did not occur contemporaneously with Peters’ alleged negligence.
We overrule Torres’ second issue.
The judgment of the trial court is affirmed.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings (not participating)
Justice Vance
Affirmed
Opinion delivered and filed April 28, 1999
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