Affirmed and Memorandum Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00017-CV
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BRENDA HOLMAN, LACHONDRA HOLMAN,
EDNA HOLMAN, and HOBERT HOLMAN, Appellants
V.
KRJ MANAGEMENT, INC., BRIARWICK
CONDOMINIUM OWNERS ASSOCIATION, INC.,
RUCKEL/DILLON, INC., d/b/a RUCKEL, DILLON, WRIGHT, INC., Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 01-15881
M E M O R A N D U M O P I N I O N
Appellants, Brenda, Lachondra, Edna, and Hobert Holman (AHolman@) appeal the trial court=s grant of summary judgment in favor of appellee, Ruckel/Dillon, Inc. (ARuckel/Dillon@).[1] Brenda Holman was rendered a quadriplegic after slipping and falling on the sidewalk in the Briarwood Condominium Complex. In addition to pursuing the condominium management association and the property management company, Holman sued the landscaping company, Ruckel/Dillon. Ruckel/Dillon moved for summary judgment arguing that it owed no duty to Holman. The trial court granted the motion for summary judgment, and we affirm.
On Saturday, November 18, 2000, Holman returned to her condominium after shopping with her mother. It had been raining for a large part of the day and was raining hard as she emerged from her car. Carrying a turkey in one hand and an umbrella in the other, Holman followed a flooded sidewalk to her unit. While making her way down the walkway, Holman apparently stepped in some mud that had accumulated on the sidewalk, slipped and fell, and seriously damaged her spine.
Holman originally sued the Briarwick Condominium Owner=s Association (ABriarwick@) and KRJ Management, Inc. (AKRJ@), the company managing the property, alleging the breach of multiple duties of care. Subsequently, KRJ and Briarwick filed a third-party action against landscapers, Dennis Wright and Associates, Inc. and Dennis Wright, individually[2] alleging that such third-party defendants were liable to Briarwick and KRJ for contributory negligence, and asserting that the third-party defendants were also comparatively negligent in causing Holman=s injuries. Holman later amended her pleadings adding Ruckel/Dillon as defendants in her case.
Ruckel/Dillon filed a motion for summary judgment arguing that it owed no duty to Holman or KRJ and Briarwick by virtue of its landscaping duties; Ruckel/Dillon did not create a dangerous situation; and Ruckel/Dillon=s voluntary activities at the complex did not leave Holman in a Aworse position.@ Responses were filed by Briarwick, KRJ, and Holman. Considering the motion for summary judgment and responses, the trial court found that Ruckel/Dillon did not owe a duty to Holman or Briarwick and KRJ. Following the trial court=s grant of summary judgment, Holman settled with Briarwick and KRJ and those causes of action were dismissed. Additionally, the trial court granted Briarwick and KRJ=s request to dismiss their third-party action. All that remains before this court is Holman=s suit against Ruckel/Dillon.
A traditional motion for summary judgment is properly granted when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.CAustin 2000, no pet.). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue. Id. We accept as true all evidence supporting the non‑movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (1985). We also indulge all inferences in favor of the non‑movant, and likewise resolve all doubts in his favor. Id. Finally, because the propriety of summary judgment is a question of law, we must conduct a de novo review of the trial court's decision. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
Tort liability requires Aboth the existence of and the violation of a duty.@ Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Whether or not there is a duty is a question of law for the court considering the surrounding facts and circumstances. Id. Generally, a party must Acontrol@ the premises before a duty of care can arise. Id. A party who does not own property, but is put into control of a premises by the owner Ais under the same duty as the owner to keep the premises under his control in safe condition.@ City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986). Control can be demonstrated by ownership, occupation, management, or possession of property. Id. at 54; see also De Leon v. Creely, 972 S.W.2d 808, 812 (Tex. App.CCorpus Christi 1998, no pet.) (citing Restatement (Second) of Torts Section 323 to say that control requires Aphysical control of the property or the intention to occupy or possess the property@). The elements of control can be proven by (1) a contractual agreement assigning a right to control or (2) evidence of actual control. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002).
Ruckel/Dillon is merely a lawn maintenance company. Not surprisingly, the contract between the Briarwick Condominiums and Ruckel/Dillon does not assign a right of control over the sidewalks. See Entex, A Div. Of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 11 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (finding no contractual right of control where contract did not impose Acontractual obligation to inspect, repair, or warn about water heater@); Barnes v. Wendy=s Int=l, Inc., 857 S.W.2d 728, 730 (Tex. App.CHouston [14th Dist.] 1993, no writ) (finding no control where lessor had a limited right to re-enter under lease, but no duty to inspect premises or insure that lessee maintained the premises); see also Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, 520 (1922) (finding requisite control following elevator malfunction where defendant contractually agreed to operate and repair elevators), overruled on other grounds by Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981). Ruckel/Dillon=s contractual duties are limited to mowing, pruning, weeding, and fertilizing. With regard to walkways, the contract only requires that the sidewalks and driveways Abe kept clean of clippings and chemically treated to control weed growth.@ Moreover, the contract provides that Ruckel/Dillon=s employees work only Monday through Friday. The contract does not address safety inspection duties or soil erosion and drainage issues.
Citing the Texas Supreme Court, Holman argues that we cannot look solely to the terms of the contract in determining whether a party has exercised Acontrol@ over a premises. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324-25 (Tex. 1993). There is evidence that Ruckel/Dillon employees performed additional work not outlined in the contract. These additional Aporter@ duties included changing lightbulbs, picking up trash, and keeping common areas free of debris. Of particular concern here is Ruckel/Dillon=s past practice of voluntarily scraping mud off of sidewalks after rainstorms. Holman contends under the authority of Alexander that when Ruckel/Dillon assumed the responsibility of cleaning the walkways and performing general non-landscaping chores, it assumed control and, therefore, a duty of care toward Holman regarding the condition and safety of the sidewalks.
We are unpersuaded by Holman=s reliance on Alexander. In Alexander a patron tripped and fell on a concrete ramp in the parking lot of a Sam=s Wholesale Club. Id. at 323. In preparing its defense, Wal-Mart argued that its lease did not require it to maintain the parking lot. Id. at 324. Notwithstanding the fact that the lease imposed a duty on the lessor to maintain parking areas, the supreme court held that Wal-Mart Aassumed actual control of the ramp area@ when it decided, A[o]n its own initiative and at it own expense,@ to build the ramp. Id. Conversely, there is no evidence in the present case to show that Ruckel/Dillon designed, built, or otherwise participated in the construction of the condominium complex or its landscape design. KRJ=s representative testified that concerns related to structural issues, i.e., raised sidewalks or standing water in a walkway, would be addressed by a general contractorCnot the landscaping company. As far as acting as the complex=s porter, KRJ=s representative indicated that the porter would not have the authority to install edging, install drains, or make other improvements without KRJ=s prior consent.
Holman cites as some evidence of expanded control the fact that while Ruckel/Dillon was required, by contract, to provide only one employee, it routinely sent two employees to work at the Briarwick condominiums We do not see how this testimony provides any logical evidence of control over the walkways or proof that Ruckel/Dillon assumed a duty to keep them safe.
Finding no evidence of control, we look to the exceptions to the general rule. A duty of care can arise in two additional situations. First, agreeing to Amake safe a dangerous condition of real property@will impose a duty of care. Lefmark, 946 S.W.2d at 54 (citing City of Denton v. Page, 701 S.W.2d 831 (Tex. 1986)). Second, the creation of a dangerous condition will result in a duty of care. Id. at 54.
There is no evidence that the landscaping contract concerned safety issues or that safety was the motivating factor in Ruckel/Dillon employees= decision to scrape up mud. KRJ=s representative explained that Ruckel/Dillon was never commissioned to inspect the property for tripping hazards. Representatives from both Briarwick and KRJ testified via deposition that Ruckel/Dillon was never asked to address soil erosion issues such as mud spilling onto walkways. Although the contract to perform landscaping work at the condominium complex did not require the removal of mud, Dennis Wright, co-owner of Ruckel/Dillon, surmised that Ruckel/Dillon employees removed mud from sidewalks in an effort to improve the appearance of the property. He maintained that such conduct would have been in compliance with its contract because it concerned aesthetics.
The facts do not demonstrate that Ruckel/Dillon created a dangerous condition. Ruckel/Dillon was only responsible for maintaining the landscaping on weekdays. On Saturday, the day of Holman=s accident, Ruckel/Dillon had no contractual duties. The hazardous condition was the result of a naturally occurring rainstorm that washed mud onto the sidewalk. In addition to not designing or constructing the complex=s landscaping, Ruckel/Dillon supplied neither the dirt nor the water that produced the mud.
Should a person desire to voluntarily assume an undertaking, he must exercise reasonable care; however, the duty Ais limited to that undertaking, and will not normally give rise to an obligation to perform additional acts of assistance in the future.@ Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396-97 (Tex. 1991) (citing Restatement (Second) of Torts ' 324A (1965)). Accordingly, the scope of Ruckel/Dillon=s undertaking is limited to weekdays and the time period following a rainstorm. Although Holman argues that Ruckel/Dillon negligently performed its maintenance duties, we find no fact issue considering both how and when the accident occurred. See Torrington v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000) (indicating a fact issue in products liability case where conflicting evidence as to scope of defendant=s undertaking to discover defective products).
We are unpersuaded that Ruckel/Dillon=s activities created some future duty to act. Future assistance is required if the injured party was put in a worse position through the defendant=s actions. Id. at 396. AA person is put in a worse position if the actual danger to him has been increased by the partial performance, or if in reliance he has been induced to forego other opportunities of obtaining assistance.@ Id.; see also Entex, 94 S.W.3d at 9 (declining to find for plaintiff under an assumption of duty theory where there was no evidence that defendant was asked to inspect water heater or analyze its condition). Ruckel/Dillon was never asked to evaluate safety concerns, and its employees did not work on weekends. We do not agree with Holman=s assertion that residents were put in greater risk of harm by the removal of mud on prior occasions. See Sbrusch, 818 S.W.2d at 398 (finding no evidence that past repairs created an increased risk of future harm). Moreover, the residents could not have reasonably relied on a prior activity that under the circumstances presented here would never have been performed, e.g., cleaning mud off the sidewalks during a rainstorm. See Entex, 94 S.W.3d at 10 (requiring that a plaintiff provide proof of actual reliance).
Ruckel/Dillon conclusively established that it owed no duty to Holman. Having negated the element of duty, Ruckel/Dillon is entitled to summary judgment. The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed March 16, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
[1] No appeal is taken against the judgment dismissing plaintiffs claims against the other defendants, KRJ Management, Inc. and Briarwick Condominium Owners Association.
[2] Dennis Wright and Associates, Inc. merged with Ruckel/Dillon, Inc. in February, 1996 to form Ruckel/Dillon, Inc. doing business as Ruckel, Dillon, Wright, Inc.