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Gonzales v. Trintiy Industries12/9/1999
al or physical impediments or obstructions to the vertical view between thirty (30) inches and seven (7) feet in height, and section 28-8 prohibiting fencing along sidewalks next to the street.
Trinity moved to strike from the seventh amended petition all of the paragraphs alleging its negligence. In essence, Trinity argued (1) that the court, in its order rendering summary judgment, had already ruled on the common-law negligence claims and (2) that the appellants' violation of the court's order requiring them to plead with specificity precluded the appellants from now amending its pleadings. The court granted Trinity's motion to strike on February 25, 1999.
WHETHER TRINITY HAD A COMMON-LAW OR STATUTORY DUTY
In issue one, the appellants challenge the trial court's summary judgment in favor of Trinity. Trinity based its motion for summary judgment solely on its argument that it owed no duty to the appellants.
Under Texas Rule of Civil Procedure 166a(c), a party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Mayer v. State Farm Mut. Auto. Ins. Co., 870 S.W.2d 623, 624 (Tex. App.-Houston [1st Dist.] 1994, no writ). A defendant is entitled to summary judgment on the plaintiffs' cause of action if the evidence disproves as a matter of law at least one element of the plaintiff's claim. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); White v. Wah, 789 S.W.2d 312, 315 (Tex. App.-Houston [1st Dist.] 1990, no writ). In deciding whether there is a disputed material fact issue precluding summary judgment, we accept the evidence that favors the non-movant as true and indulge all reasonable inferences and resolve all doubts in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
The three elements of negligence are: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damage proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762 (Tex. App.-Houston [1st Dist.] 1994, no writ). Trinity based it motion for summary judgment on the ground that it owed no legal duty to the appellants.
The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Osti v. Saylors, 991 S.W.2d 322, 326 (Tex. App.-Houston [1st Dist.] 1999, pet. filed). The appellants contend Trinity owed them a common-law duty as the owner of property abutting a highway. They also contend Trinity owed them a duty under Houston city ordinance 91-1701.
Common-Law Duty
Owners or occupiers of premises abutting a highway have a duty to exercise reasonable care to avoid endangering the safety of persons using the highway for travel and are liable for any injury proximately resulting from their negligence. Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). This Court has opined that the rule is "limited to cases where an owner negligently releases upon the highway `an agency that becomes dangerous by its very nature once upon the highway.'" Dixon, 874 S.W.2d at 763. See, e.g., Alamo Nat'l Bank, 616 S.W.2d at 910 (wall of building being demolished falls onto city street); Atchison v. Texas & Pac. Ry., 186 S.W.2d 228, 229 (Tex. 1945) (smoke from grass fire drifts across adjacent road); Skelly Oil Co. v. Johnston, 151 S.W.2d 863, 865 (Tex. Civ. App.-Amarillo 1941, writ ref'd) (water
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