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Harris v. Walker8/10/1995
This appeal arises from a suit brought under the Texas Wrongful Death Statute. Appellants' son, Ronald Harris, was stabbed to death by a third party at an apartment complex owned by appellees. In five points of error, appellants contend that the trial court erred in granting summary judgement against them. We reverse and remand.
Facts
Appellees own a four-family duplex in Brookshire, Texas. On November 22, 1990, Ronald Harris attended a party with his brother at one of the apartments. Outside the apartment, but still on the premises, Ronald Harris was stabbed to death by Andre Lasker, an unrelated third party.
Appellants filed suit alleging that appellees were liable for negligence. They contended that appellees knew or should have known that this area of the city was known for criminal activity. Consequently, appellants should recover damages based on their negligent failure to warn the public of this condition and to provide adequate security.
Standard of Review
The standard for appellate review of a summary judgement for a defendant is whether the summary judgement proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgement as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). A summary judgement for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pled. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983); Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App. -- Houston [1st Dist.] 1991, writ denied). Once a defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex. 1972); Haight, 814 S.W.2d at 851.
A summary judgement cannot be affirmed on any grounds not presented in the motion for summary judgment. Hall v. Harris County Water Control and Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex. App. -- Houston [14th Dist.] 1984, no writ); Haight, 814 S.W.2d at 851. When a trial court's order does not specify the grounds relied on for its ruling, the summary judgement will be affirmed if any of the theories advanced are meritorious. Insurance Co. of North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App. -- Houston [1st Dist.] 1990, no writ); Haight, 814 S.W.2d at 851.
Issues of Material Fact
In point of error four, appellants contend that the trial court erred in granting summary judgement because the summary judgement evidence created a genuine issue of material fact on the issues of liability and causation.
The summary judgement evidence includes affidavits and depositions of security experts for both appellants and appellees. It is undisputed that appellees provided no security measures at the Heritage Manor Apartments. They argue that no security was necessary because the stabbing was not foreseeable.
Appellees' security expert, Dav
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