Date: 03-28-2011

Case Style: Julie Hyde v. Ryan C. Hoerauf

Case Number: 06-10-00101-CV

Judge: Josh R. Morriss, III

Court: Texas Court of Appeals, Sixth Circuit on appeal from the 173rd District Court of Henderson County

Plaintiff's Attorney: Reese Andrews and John Michael Head

Defendant's Attorney: J. Chad Parker and W. Todd Parker

Description: Driving home from a “pasture party” at which she had consumed alcohol, seventeen-year-old Brandi Christina Ross was tragically killed in an automobile accident. The party had been held, without permission, in Henderson County,[1] on a fifty-six-acre tract of land owned by Ryan C. Hoerauf.

Following Brandi’s death, Julie Hyde and Chris Ross, individually and as representatives of the estate of Brandi, collectively referred to herein as Hyde, filed a wrongful death and survival action asserting negligence and gross negligence against multiple parties,[2] including Hoerauf and various entities to which Hoerauf had connections, collectively referred to herein as Hoerauf. Hoerauf filed a motion for summary judgment, to which Hyde replied. From a summary judgment granted in favor of Hoerauf, Hyde appeals.

We must determine whether an absent landowner owes a duty to a trespasser who is injured or killed after leaving the landowner’s land. Because Hoerauf owed no legal duty with respect to the off-premises accident, we affirm the summary judgment of the trial court.

While Hoerauf owned the property where the pasture party had taken place, no one at the party was associated with Hoerauf or any related entity. It is undisputed that the attendees of the party—students and former students of Kemp High School—were drinking alcohol. The only “adults” at the party were in their early twenties, all former Kemp High School students. Previous pasture parties had taken place at different locations on Hoerauf’s property during the summer months. None of the partygoers had permission to be on the property, described as being “out in the middle of nowhere.”[3] Party attendees cut the fence to the Hoerauf property on at least two different occasions in order to gain access to the property.

Hoerauf was aware, before the party that immediately preceded Brandi’s death, that his fence had been cut on two occasions and that there were tire tracks, empty beer containers, and remnants of bonfires on his property. Hoerauf was not aware that the trespassers were teenagers. After having twice repaired the cut fence, Hoerauf began construction of heavy duty fencing for the entire fifty-five acres.[4] In the midst of this re-fencing process,[5] the fateful party took place. At the time, Hoerauf, who lives in Odessa, was not aware that his land was being used for an unauthorized gathering. Neither Hoerauf nor his property manager, Wes Hart, contacted the Henderson County Sheriff’s Office to advise of a trespassing problem. No signs were posted to advise trespassers to keep off of the property.

Summary Judgment Standard of Review

We review de novo the grant of a traditional motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must conclusively establish the absence of any genuine question of material fact and that judgment is available as a matter of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). A movant must either prove all essential elements of his or her claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the nonmovant’s cause of action. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).

When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate that none of the movant’s proposed grounds for summary judgment is sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 422 (Tex. App.—Texarkana 2002, no pet.). Conversely, we will affirm the judgment if any one of the theories advanced in the motion for summary judgment and preserved for appellate review is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

The Summary Judgment

The motion for summary judgment attacked Hyde’s cause of action for negligence and gross negligence for (1) condoning or allowing alcohol to be provided to, and consumed by, minors on the property, (2) “liability of a ‘pasture party,’” (3) “allowing or contributing to minors driving from the party after consuming alcohol,” (4) “providing alcohol to minors,” (5) “providing control and oversight of an unrestricted access to the property,” and (6) ”creating an unsafe or attractive nuisance.”[6] The allegations of negligence and gross negligence were grounded in premises liability.[7] Hoerauf maintained that Brandi and others attending the pasture party on his property were trespassers; he contended that Hyde’s premises liability claims were conclusively negated by demonstrating that he did not violate the duty owed a trespasser—not to cause injury to such a person through willful, wanton, or grossly negligent conduct.

In response to Hoerauf’s motion, Hyde claimed that material fact questions existed because Hoerauf was on notice of the activities on his property, as evidenced by cut fences, tire tracks, remnants of bonfires, and beer cans and bottles strewn about. In essence, Hyde claimed Hoerauf was on sufficient notice that pasture parties were taking place on his property such that Hoerauf should have foreseen the risk of harm or injury based on alcohol consumption by minors at such parties.[8] Hyde claims that the evidence presented material fact issues with respect to whether Hoerauf was willful, grossly negligent, or negligent in failing to take effective measures to ensure that such illicit gatherings were stopped. It is apparent that this was the only issue before the trial court on motion for summary judgment.[9]

No Duty Was Owed in Off -Premises Accident

It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability. Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). As in any other tort action, “a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.” Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008). The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Moritz, 257 S.W.3d at 217. If no duty exists, then no legal liability for a premises liability claim can arise. Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex. App.—Fort Worth 2008, pet. denied); Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 99 (Tex. App.—El Paso 2005, no pet.).

Brandi and the other partygoers were trespassers[10] on Hoerauf’s property. The only duty a premises owner or occupier owes to a trespasser is not to cause injury willfully, wantonly, or through gross negligence.[11] Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). The issue of whether Hoerauf was grossly negligent presumes the injury in question occurred on Hoerauf’s property. Because Brandi was not injured by an unreasonably dangerous condition on Hoerauf’s property, there is no evidence of actionable gross negligence.

A legal duty owed a trespasser on another’s property arises from the ownership or control of property on which the trespasser is harmed. See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (possession and control generally must be shown as prerequisite to liability); Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704 (Tex. App.—Fort Worth 1998, pet. denied); Tex. Jur. 3d Premises Liability § 12 (2008) (duty of premises owner arises from control of the premises). If a trespasser comes to no harm on the property on which he or she is trespassing, but is harmed off-premises, a duty does not exist under a premises liability theory of recovery. Thus, a claim of premises liability presumes that injury occurred on property owned by the defendant. “[T]o prevail on a premises liability claim a plaintiff must prove that the defendant possessed--that is, owned, occupied, or controlled--the premises where injury occurred.” Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) (emphasis added); Strunk, 225 S.W.3d at 98 (before duty can be imposed, plaintiff must prove injury occurred on premises owned or occupied by defendant). To recover on a premises defect theory, a person must have been injured by a condition on the property.[12] See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). A plaintiff must establish that the defendant had control over and responsibility for the premises before a duty can be imposed on the defendant. See County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); Dukes, 252 S.W.3d at 592; Hirabayashi, 977 S.W.2d at 706 (no duty to provide patron with safe access to vacant parking lot across street abutting defendant’s premises). The control must relate to the condition or activity that caused the injury. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

In this case, no injury occurred on property owned, occupied, or controlled by Hoerauf. Here, the injury occurred on a street or roadway—we are not given the precise location—while Brandi was en route to her home. A property owner generally does not owe a duty to one who leaves his or her premises and is injured on adjacent highways.[13] See Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762–63 (Tex. App.—Houston [1st Dist.] 1994, no writ) (property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways); Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The right of control over the injury-causing condition or activity gives rise to the duty of care. See Olivo, 952 S.W.2d at 528 (discussing general contractor’s liability for independent contractor’s negligent activities on premises).

Because Hoerauf had no right of control over the injury-causing activity—driving after having ingested alcohol[14] or even the party or drinking itself—Hoerauf owed no duty of care to prevent the accident. Said another way, any duty Hoerauf may have owed to Brandi in his capacity as a landowner pursuant to a premises liability theory ceased when Brandi exited the Hoerauf property and was no longer considered a trespasser thereon.

After reviewing the evidence in the light most favorable to Hyde, we determine Hyde failed to allege or raise a fact question that the injury occurred on premises owned or occupied by Hoerauf. Hoerauf, therefore, at the time of the accident, owed no duty to Brandi under a premises liability theory of recovery.

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See: http://www.6thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=10774

Outcome: We affirm the judgment of the trial court.

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Defendant's Experts:

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