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Opinion filed March 9, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00059-CV
__________
COURTNEY RUTHERFORD, Appellant
V.
THE TRACES LOFT VILLAGE MANAGEMENT, INC., Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2003-69928
M E M O R A N D U M O P I N I O N
Courtney Rutherford filed a negligence action against The Traces Loft Village Management, Inc., the owner of her apartment complex, for personal injuries she sustained while trying to trim a tree that was striking the roof and window of her apartment. The trial court granted the apartment complex=s motion for summary judgment. We affirm.
Background Facts
Rutherford was a resident at the Traces Loft Village Apartments. She complained to management about a tree in the common area and asked them to trim the tree=s branches because the branches had knocked a hole in her bedroom window and were striking her roof and making noise during storms. Rutherford reduced her request to a written work order in March.
The parties dispute what happened next. Rutherford contends that nothing happened. She claims that she called management several times and spoke to the office manager, Rita. Initially, Rita told her that the tree would be trimmed and her window repaired. Finally in July, Rita told her the complex would not trim the tree. Rutherford contends Rita then told her that, if she did it herself and was not seen, Rutherford would not get into any trouble. Traces Loft denies refusing to trim the tree and suggests the real issue is Rutherford=s belief that it took too long. Rutherford ultimately decided to trim the tree herself and, while doing so, fell out of the tree and fractured her pelvis and tailbone.
Rutherford filed suit and alleged that her injuries were caused by Traces Loft=s negligent failure to use ordinary care in maintaining the complex=s common area. Traces Loft filed a traditional motion for summary judgment and a separate no-evidence motion for summary judgment. The trial court orally denied Traces Loft=s motions in a pretrial hearing, but no written order was signed. The trial court reconsidered its ruling on the traditional motion prior to the start of trial and signed an order granting that motion and dismissing Rutherford=s cause of action.
Issues
Rutherford challenges the trial court=s ruling with three issues. Rutherford contends the trial court erred by: (1) granting Traces Loft=s motion based upon arguments and authorities not submitted to the trial court; (2) determining that Traces Loft owed Rutherford no duty; and (3) determining that Traces Loft had met its burden of proof. Traces Loft denies any error by the trial court and argues alternatively that, even though the trial court did not specifically grant its no-evidence motion, the final judgment can also be affirmed based upon the issues raised in that motion.
Standard of Review
A summary judgment shall be rendered if the evidence properly before the court indicates that Athere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.@ Tex. R. Civ. P. 166a(c). When a defendant files a traditional motion for summary judgment, it must either conclusively negate at least one of the essential elements of a plaintiff=s cause of action or conclusively establish each element of an affirmative defense. Randall=s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If a defendant negates an element of a plaintiff=s claim, the burden shifts to the plaintiff who must produce evidence creating a genuine issue of material fact on the disputed element. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The trial court must assume that all evidence favorable to the nonmovant is true and must view the evidence in the light most favorable to the nonmovant. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 491 (Tex. 1996). The trial court must also indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We review the trial court=s decision as a question of law and, therefore, utilize a de novo review applying the same presumptions as are applicable to the trial court. Elson Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 896 (Tex. App.CAustin 2001, no pet.).
Did The Trial Court Correctly Grant Traces Loft=s Traditional Motion For Summary Judgment?
Rutherford did not sue Traces Loft for premises liability but for negligently failing to maintain the complex=s common area. Traces Loft challenged the presence of a general negligence duty, contending that any duty it might owe is defined by Texas premises liability law. Traces Loft contended further that it owed Rutherford no duty to prevent her from climbing or falling from a tree and that she was solely responsible for her own injury.
The Texas Supreme Court explained the difference between liability for negligent activity and liability for failing to remedy an unreasonable risk of harm due to the condition of premises in Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). The court held that A[r]ecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.@ Id. at 264. Negligence in the former means simply doing or failing to do what a person of ordinary prudence would have done in the same or similar circumstances. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). Negligence in the latter means Afailure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.@ Id.
Traces Loft contends that the Supreme Court=s holding in Keetch limits any duty it might owe to a premises defect theory. To the extent Traces Loft contends that the only cause of action a tenant might ever have against it is for premises liability, we believe it reads too much into that holding. In an appropriate case, an apartment owner could have a general negligence duty to its tenants which extends beyond premises liability. Whether Rutherford=s suit presents such a case is a question of law. See Timberwalk Apartments, 972 S.W.2d at 756 (whether a duty exists is a question of law).
A. Did The Trial Court Exceed Its Authority?
In her first issue, Rutherford contends that the trial court erred by granting summary judgment on arguments and authority not presented to the trial court. The thrust of her complaint is that Traces Loft attempted to recast her negligence claim as a premises liability claim and, therefore, did not controvert the only cause of action pled. A motion for summary judgment is sufficient if it gives fair notice to the nonmovant of the basis on which it is sought. Waldmiller v. Cont=l Express, Inc., 74 S.W.3d 116, 123 (Tex. App.CTexarkana 2002, no pet.). Traces Loft=s motion gave Rutherford and the trial court sufficient notice that it contested the presence of any duty when it contended it owed Rutherford no duty to prevent her from climbing or falling from a tree. The trial court had the authority to determine if Traces Loft violated any duty. Therefore, Rutherford=s first issue is overruled.
B. Did Traces Loft Owe Rutherford A General Negligence Duty?
In her second issue, Rutherford contends the trial court erred when it held Traces Loft had no duty. To determine if Traces Loft violated a general negligence duty as alleged by Rutherford, we must decide why Traces Loft was required to trim the tree. See Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991)(tort obligations are imposed by law while contractual obligations result from an agreement between parties). Rutherford contends Traces Loft had a general duty to do so and, in this instance, committed five acts of negligence: (1) failing to properly and timely maintain the property; (2) failing to trim the tree after receiving actual notice of the defect; (3) advising Rutherford to trim it herself; (4) failing to inform the property care company of the defect; and (5) failing to timely request the property care company to remedy the defect.
Three of Rutherford=s allegations involve the presence of a Adefect.@ If Traces Loft was required to trim the tree because it otherwise constituted a defect, then Rutherford=s claim arises out of a condition of the property and, therefore, was for premises liability. The Supreme Court=s holding in Keetch, 845 S.W.2d at 262, affords a tenant the opportunity to assert a negligence claim for a negligent activity. It does not, however, allow a party to simply recast a premises liability action as a general negligence claim. To the extent Rutherford alleged Traces Loft had a duty to trim the tree because it otherwise constituted a defect, we find that the trial court appropriately granted the motion for summary judgment.[1]
If Traces Loft was otherwise required to trim the tree, it was because of the parties= lease agreement. Rutherford does not contend Traces Loft had a general duty to the public but contends the duty flowed from the parties= relationship as landlord/tenant. Rutherford acknowledges that she was subject to a lease agreement and that the agreement prohibited her from performing any repairs. She also acknowledges that it was Traces Loft=s responsibility to trim the trees. Because the lease agreement imposed this duty on the complex, any breach of that duty sounds in contract. See CBI NA-CON, Inc. v. UOP Inc., 961 S.W.2d 336, 340 (Tex. App.CHouston [1st Dist.] 1997, pet. denied)(if a negligence claim alleges the breach of the very duties encompassed in a contract, the action is in substance an action on the contract). Consequently, we hold the trial court correctly granted Traces Loft=s motion for summary judgment to the extent Rutherford alleges it negligently failed to trim the tree.
This leaves Rutherford=s claim that Traces Loft negligently advised her to trim the tree herself. Her evidence, however, does not establish a negligent activity. Rutherford contends that Traces Loft has an extensive history of failing to maintain and/or take care of repairs. Rutherford contended that she had a prior problem with a leaking bathtub and that, despite completing a work-order request and making numerous follow-up contacts, it took Traces Loft several months to fix the leak. When the leak was finally repaired, Traces Loft cut a hole in the ceiling of her bathroom. Despite several requests, Traces Loft took several months to repair that hole. She alleges that she originally reported the tree problem to management and completed a work order in March, that she called management several times to complain about the tree, that she was told the tree would be trimmed, but that it never was. Eventually, Rita told her the complex did not trim trees on the property.
Rutherford then testified:
Q. After Rita told you that, did you contact anybody else about the tree situation?
A. She B after she said that she wouldn=t trim the tree, she told me if I did it myself, they didn=t see that I had done it myself, that I would not get in trouble for that.
* * *
Q. Did Rita give you any kind of saw or any other tools to trim the tree?
A. No.
Q. Did anyone at Traces do that?
A. No.
Q. Did Rita tell you to specifically yourself go trim the tree?
A. She said if I did it and she didn=t see it, that I wouldn=t get in trouble for it.
This testimony would support a claim for breach of contract and would be a defense to any action Traces Loft might have asserted against Rutherford, but it does not establish a negligent activity by the complex. Rutherford=s negligence claim cannot simply rest on the complex=s failure to trim the tree or her decision to trim the tree herself because those sound in contract. Instead, Rutherford must show that, for reasons above and beyond the contract, Traces Loft negligently undertook or failed to take an action that resulted in her falling from the tree. This testimony is insufficient to establish a separate negligent activity, and we have been pointed to no other in the record. Accordingly, we find the trial court did not err when it granted Traces Loft=s motion for summary judgment on this ground, and Rutherford=s second issue is overruled.
C. Did Rutherford Raise A Genuine Question Of Fact On Proximate Cause?
In her third issue, Rutherford contends the trial court erred by not finding a genuine question of fact existed on whether Traces Loft=s negligence was the proximate cause of her injury. Because we find Traces Loft had no general negligence duty as a matter of law, its actions could not be the proximate cause of her injuries. Furthermore, the evidence was insufficient to create a genuine question of fact. Proximate cause consists of cause-in-fact and foreseeability. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
The test for cause-in-fact is whether the negligent act or omission was a substantial factor in bringing about an injury, without which the harm would not have occurred. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). This requires more than furnishing a condition which made the injury possible. See Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.CHouston [1st Dist.] 1999, pet. denied)(defendant=s policy of allowing a security guard to enter guest rooms in case of a disturbance without first finding another person to accompany him was not cause-in-fact of plaintiff=s injury because it did no more than furnish a condition making the injury possible).
Rutherford contends the complex=s failure to trim the tree and Rita=s statement that, if she was not seen trimming the tree she would not get into trouble, led her to attempt to trim the tree herself. This statement did no more than furnish a condition which made Rutherford=s injury possible. Rutherford made the decision to trim the tree and to proceed by herself even though her boyfriend was in her apartment. She used her own equipment to climb and trim the tree. At the time of her fall, she was not touching the ladder but was hanging onto the tree. She was aware that this was at least a little dangerous.
Rutherford offered no evidence that Traces Loft was aware that she was actually trying to trim the tree or that it knew how she intended to do so. Rutherford offered no evidence that Traces Loft had any input on the means and method she utilized or, in any other way, exercised any control over her actions. This is insufficient to establish a genuine issue of fact on proximate cause. Rutherford=s third issue is overruled.
Conclusion
The trial court correctly granted Traces Loft=s traditional motion for summary judgment. In light of this holding, it is unnecessary for us to consider Traces Loft=s no-evidence motion for summary judgment. The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
March 9, 2006
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]Moreover, the tree was not a defect. This court has defined defect as a shortcoming, an imperfection, or the want of something necessary for completeness. Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.CEastland 1998, pet. denied). Simply because the tree=s branches may have needed trimming is insufficient to constitute a defect.