Carreiro v. Wiley6/18/1998
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 94-34994-B
Brian M. Chandler, Houston
Robert Carreiro (the plaintiff), appeals from summary judgment granted in a lawsuit arising out of the murder of his daughter, Kynara Carreiro.
Facts
The facts giving rise to this lawsuit are undisputed. Kynara, age 7, and Kristin Wiley, age 10, were murdered in the Wileys' house by Rex Mays. At the time of the murders, the Wileys were at work and no one was on the premises supervising the girls. Mays was tried, convicted, and sentenced to death for the girls? murders.
The summer of 1992 was the first time Edward and Rebecca Wiley, Kristin's parents, left their children at home alone during the work day. They instructed Jeromy Garza Wiley, age 14, Kristin's half-brother, to keep all doors and windows locked, report by telephone at least hourly on their activities, and to keep Kristin with him, have her stay inside with the doors locked, or, if they were going to be separated, see to it that Kristin went to a neighbor's house. On the day of the murders, Jeromy left the house, leaving his sister and her friend, Kynara, home alone. He did not lock the front door.
The Wiley parents knew before the day of the murders that Jeromy did not always report as required, "as many 14-year-olds, he had a lapse in judgment about reporting on time."
The plaintiff sued Edward, Rebecca, and Jeromy Wiley under the wrongful death act and the survival statute. TEX. CIV. PRAC. & REM CODE ยงยง71.002(b), 71.021 (1998). The Wileys will be referred to as the defendants. The plaintiff sued the Wiley parents for breaching their duty of care to Kynara, and sued Jeromy Wiley for negligence in failing to perform the duties delegated to him by his parents.
The defendants moved for summary judgment on the ground that Mays? criminal act was the superseding cause of Kynara's injuries and death. The trial court granted the defendants' motion for summary judgment.
Standard of Review & Burden of Proof
Summary judgment is proper when a defendant establishes, as a matter of law, there are no issues of material fact concerning one or more of the essential elements of the plaintiff's cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Pena v. Van, 960 S.W.2d 101, 103 (Tex. App.-Houston [1st Dist.] 1997, pet. filed).
On appeal, when reviewing the sufficiency of the grounds, we will affirm the summary judgment if the motion for summary judgment includes any valid grounds to support the judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Pena, 960 S.W.2d at 103. We will not consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Pena, 960 S.W.2d at 103.
When a motion for summary judgment is based on the insufficiency of the non-movant's pleadings, on appeal we assume all allegations and facts in the pleadings are true. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); see also American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434 (Tex. 1997) (" t is not incumbent upon a plaintiff non-movant to produce evidence supporting the allegations made in her pleadings.."). We indulge every reasonable inference in favor of the non-movant and resolve any reasonable doubt in its favor. Science Spectrum, Inc., 941 S.W.2d at 911; Pena, 960 S.W.2d at 103.
The Pleadings
In hi
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