Date: 02-10-2016

Case Style: Charla Logsdon as next friend of Jordan Logsdon v. Freddie Cross and Eva Cross

Case Number: 05-14-01328-CV

Judge: David Evans

Court: Texas Court of Appeals for the Fifth Court of Appeal from 417th Judicial District Court of Collin County

Plaintiff's Attorney: Carlos A. Balido and Robert T. Walls for Freddie Cross

Defendant's Attorney: Christopher A. Kalis and Matthew Lindner for Charla Logsdon

Description: Charla Logsdon, as next friend of Jordan Logsdon, appeals from the trial court’s adverse no-evidence summary judgment in her lawsuit against Freddie and Eva Cross1 for personal injuries her minor daughter Jordan sustained in an all-terrain vehicle (ATV) accident. In a single issue, Logsdon argues she presented sufficient evidence to raise genuine issues of material fact with respect to each challenged element of her negligence, gross negligence, and premises liability causes of action. For the reasons that follow, we conclude the trial court did not err in granting summary judgment and dismissing Logsdon’s claims against the Crosses with prejudice. Accordingly, we affirm the trial court's judgment.

BACKGROUND
Fourteen-year-old Jordan was injured on Thanksgiving Day, November 22, 2012, when she lost control of the ATV she was driving on a public gravel road and crashed into a fence. For a short while before the accident, Jordan was a guest at the Crosses’ home along with her father, the Crosses’ daughter Angela, and others.2 The Crosses’ nine-year-old grandson Jackson (Angela’s son) had driven the ATV to the Crosses’ home that day from Angela’s home and parked it on the Crosses’ property.3 Later, Jordan drove the ATV from the Crosses’ property to Angela’s home where her sister Taylor joined her on the ATV. The accident occurred shortly thereafter. It is undisputed that the ATV Jordan was driving was not owned by the Crosses. After the accident, Logsdon sued the Crosses and others for injuries Jordan sustained in the accident.
In her live pleading, Logsdon alleged that on the day of the accident, the ATV was parked on the Crosses’ property with the keys in it, thereby allowing Jordan to operate the vehicle. Among other things, Logsdon generally asserted the Crosses were negligent in failing to prevent Jordan from using the ATV and failing to instruct or train her to operate the ATV properly. Alternatively, Logsdon contended the Crosses were liable under a premises liability theory because the ATV was a dangerous condition on their property of which they had knowledge. Logsdon also asserted a gross negligence claim against the Crosses based on their alleged conduct.
The Crosses moved for summary judgment on all claims against them asserting there was no evidence they owed or breached a legally cognizable duty to Jordan. The trial court grantedthe Crosses’ summary judgment motion and dismissed with prejudice all claims against them. The claims against the Crosses were then severed from the lawsuit and Logsdon filed this appeal.

ANALYSIS
We review a trial court’s decision to grant or deny a motion for summary judgment de novo. City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex. 2013). In a noevidence summary judgment, the non-movant must present more than a scintilla of probative evidence to raise a genuine issue of material fact on each challenged element of a claim on which the non-movant has the burden of proof. See TEX. R. CIV. P. 166a(i); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). In analyzing whether the non-movant has met his burden, we review the summary judgment record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the movant. City of Lorena, 409 S.W.3d at 645. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

A. Negligence
The elements of actionable negligence are a duty owed to one party by another, a breach of that duty, and damages proximately caused by the breach of that duty. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). In their no-evidence summary judgment motion, the Crosses challenged the duty element with respect to Logsdon’s negligence claim. Specifically, the Crosses asserted Logsdon had no evidence: (a) they owned the ATV on which Jordan was injured, (b) that Jordan was under their supervision or told them she was going to ride the ATV, (c) that they trained or gave Jordan permission to operate the ATV, or (d) that they left, or had knowledge of, a key left in the ATV.
In the trial court and on appeal, Logsdon argues the Crosses owed Jordan a duty based on evidence that the Crosses “created a ‘culture of ATVs’” by owning or controlling at least eight ATVs on their property, encouraging and teaching young children to drive and repair the ATVs, and leaving keys in the motor vehicles on their property. Logsdon contends these facts created a duty because they made an ATV injury to a child “certainly for[e]seeable, if not inevitable.” We do not agree that the evidence upon which Logsdon relies is sufficient to create a duty on the part
of the Crosses.
Generally, there is no duty to control the conduct of others. See Greater Houston Trans. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Under Texas law, the existence of a duty is determined by looking at three factors: “(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.” Texas Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 34 (Tex. 2002). Here, the evidence reveals that Jordan was simply a guest at the Crosses home for Thanksgiving and the Crosses did not own the ATV that Jordan was driving. There was no evidence the Crosses were aware Jordan intended to drive the ATV from their property or that they knew the keys were left in the ATV Jackson parked on their property. Indeed, it is unclear from the record whether the Crosses even knew Jackson had driven the ATV to their home that day. Logsdon has failed to cite a single
case, and we have found none, that suggests a legal duty should be imposed upon the Crosses based solely on the reasonable foreseeability that their actions of creating a “culture of ATVs” on their property would harm Jordan. See J.P. Morgan Chase Bank v. Texas Contract Carpet, Inc., 302 S.W.3d 515, 535 (Tex. App.—Austin 2009, no pet.) (intermediate appellate courts should be reluctant to recognize new common law duty that has no existence in established law).
In reaching this conclusion, we necessarily reject Logsdon’s contention that fact issues regarding whether Angela or Jordan’s father owned the ATV she was driving, whether Jackson actually left the key in the ATV, or who owned the property where the ATV was normally stored before being parked on the Crosses’ property the day of the accident precluded summary judgment. None of these fact issues are relevant to whether the Crosses owed a duty to Jordan.
Accordingly, Logsdon has not shown that the trial court erred in granting summary judgment on her negligence claim.

B. Premises Liability
Premises liability is a special type of negligence claim where the duty owed depends on the status of the plaintiff at the time of the incident. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004). Logsdon acknowledges that Jordan was a social guest, and thus, a licensee on the Crosses’ property at the time of the incident. See Gatten v. McCarley, 391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.) (social guest is licensee, not invitee). Accordingly, the Crosses had a duty not to injure Jordan by willful, wanton or grossly negligent conduct and, if the Crosses had actual knowledge of a dangerous condition unknown to Jordan, they had the duty to warn her of the condition or make it safe. See id. (duty owed by property owner to licensee). Logsdon argues that because there was evidence the Crosses had significant knowledge regarding the general dangers of ATVs on their property and Jordan had very little knowledge about ATVs and the dangers they presented, the Crosses had a duty “to prevent, make safe or at least warn [her] of the dangers posed by ATVs.” We do not agree.
Logsdon’s argument is based on the assumption that the ATV Jackson parked on the Crosses’ property was a dangerous condition of which Jordan was not aware. Once again, Logsdon cites no authority to support this position and we have found none. Viewing the summary judgment record in the light most favorable to Logsdon, we accept Logsdon’s version of the facts that the key was in the ATV at the time Jordan decided to drive it from the Crosses’ property.4 But the summary judgment record is devoid of any evidence that the Crosses knew either that Jackson parked the ATV on their property with the key in it or that Jordan intended to operate the ATV. Moreover, there is no evidence that Jordan was not aware of the dangers posed by the ATV. Because there is no evidence the Crosses breached a duty they owed to
Jordan, the trial court did not err in granting the Crosses summary judgment on Logsdon’s premises liability claim.

C. Gross Negligence
Like negligence claims, a defendant may be liable for gross negligence only to the extent he owed a legal duty to the plaintiff. See City of Waco v. Kirwan, 298 S.W.3d 618, 623, (Tex. 2009). Indeed, the threshold question regarding a gross negligence claim is whether a legal duty existed. See RT Realty, L.P. v. Tex. Utils. Elec. Co., 181 S.W.3d 905, 914 (Tex. App.—Dallas 2006, no pet.). Having already concluded there is no evidence in the summary judgment record
to support a conclusion that the Crosses owed Jordan a legal duty, Logsdon has also failed to present evidence sufficient to maintain her gross negligence claim. See West v. SMG, 318 S.W.3d. 430, 442–43 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (trial court did not err in granting defendant’s summary judgment motion because plaintiff failed to present evidence on the element of duty necessary to both her negligence and gross negligence claims).

Outcome: We affirm the trial court’s judgment.

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