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Opinion issued January 22, 2009 






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In The

Court of Appeals

For The

First District of Texas





NO. 01-08-00645-CV





BRADLEY ALAN JACOBSON, Appellant


V.


AVI RON, TRUSTEE, Appellee





On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2005-76759A





MEMORANDUM OPINION

          Appellant, Bradley Alan Jacobson, fell and injured his knee while attempting to halt the demolition of a building owned by appellee, Avi Ron. Ron had purchased the vacant building and land underneath from the Jacobson Family Trust I (“the Trust”), which had financed Ron’s purchase. While a portion of the note remained outstanding, Ron elected to begin demolishing the existing building to clear space for a new one. After approximately half of the building had been razed, Jacobson discovered the demolition. Believing that Ron was destroying the collateral securing the note, Jacobson went onto the property, at the direction of the trustee, to stop the demolition crew. On his way to the bulldozer, Jacobson fell on some rubble and injured his knee.

          Jacobson sued Ron under theories of premises liability and general negligence, alleging that Ron (1) failed to maintain the property in a reasonably safe condition or “to take adequate measures[,] such as fencing, to cordon off the area” and (2) “negligently created a dangerous condition that placed property [sic] in immediate risk of imminent harm and knew it was foreseeable that [Jacobson] would intervene to rescue the property from destruction,” and was therefore liable under the “rescue doctrine.”

 

 

 

          Ron moved for summary judgment on the ground that the evidence conclusively negated the duty, breach, and causation elements of Jacobson’s claims. The trial court granted summary judgment in favor of Ron.

          In two issues, Jacobson contends that the trial court erred (1) by concluding that Ron “is not liable on [Jacobson’s] premises liability claims” and (2) by concluding that “the rescue doctrine is inapplicable to [Jacobson’s] general negligence claim.”

          We affirm.

Background

          In May 2004, Ron purchased property and a vacant building located at 1600 North Main Street in Houston (“the property”) from the Trust, through its trustee, Katherine Jacobson. Footnote The Trust financed the sale of the property to Ron under a promissory note, and the note was secured by a deed of trust. According to Ron, he agreed to pay the $325,000 purchase price on the basis of the value of the land. The building, in his opinion, was valueless. In addition, it was populated by vagrants, loaded with trash, and the street area surrounding it was flooded. Ron had received numerous complaints from neighborhood citizens, and he considered the building to be a liability. Ron hired Delaney Construction Company Footnote to demolish it.

          On December 3, 2004, Jacobson was driving by the property and discovered the demolition in progress. He called the trustee and asked if Ron had paid off the note or had obtained permission to demolish the building. According to Jacobson, the trustee responded in the negative and instructed Jacobson to “go stop them.”           The facts surrounding the incident at issue are in dispute. According to Jacobson, who testified by deposition, he parked his truck across the street from the demolition site and attempted to get the attention of the bulldozer operator. Jacobson said that, when he was unsuccessful, he entered the property “solely to rescue our collateral property from further destruction.” On his way to the bulldozer, Jacobson fell and twisted his knee while traversing some rubble. Jacobson was in considerable pain but was able to get up and walk. He approached two of the men working at the site and asked if they worked for Ron. They responded in the negative and stated that their company had been contracted. Jacobson said, “Well, my Trust owns this property and we’re carrying the note and y’all are not supposed to be demolishing this building.” According to Jacobson, one of the workers called “his boss” and the “boss told him to stop.” Then Jacobson left.

          Emeterio Alarcon, of Delaney, was the bulldozer operator on site on the day of the incident. Alarcon testified by deposition that he was on the bulldozer pushing debris into a pile when he saw Jacobson drive up. Alarcon testified that he saw Jacobson get out of the truck and walk toward him waving his hands, and that Alarcon shut off the bulldozer, got off, and walked toward Jacobson. Jacobson told Alarcon to stop the demolition, and Alarcon directed Jacobson to talk to the job supervisor, Rick Riley, who was at Papa’s Burgers—a nearby restaurant. Alarcon said that he watched Jacobson walk back to his truck, drive over to Papa’s Burgers, and talk with Riley. Alarcon testified that he never saw Jacobson fall.

          In the days that followed the incident, the Trust notified Ron that it considered the demolition of the vacant building to be a default under the terms of the promissory note. On December 27, 2004, Ron made a partial pre-payment on the note in the amount of $175,000, which apparently resolved the issue.

          Subsequently, Jacobson sued Ron for his knee injury under theories of premises liability and general negligence. Jacobson asserted that he had sustained a “severe and permanent . . . knee injury resulting in surgery and subsequent complications and hearing loss” which were caused “by falling rubble from the structure.” Specifically, Jacobson alleged that Ron (1) failed to maintain the property in a reasonably safe condition or “to take adequate measures[,] such as fencing, to cordon off the area” and is “responsible for the acts of its agents, representatives, and/or employees” and (2) “negligently created a dangerous condition that placed property in immediate risk of imminent harm and knew it was foreseeable that [Jacobson] would intervene to rescue the property from destruction,” and was therefore “liable under the ‘rescue doctrine.’”

           Ron moved for summary judgment on the ground that the evidence conclusively negated the duty, breach, and causation elements of Ron’s claims. Ron contended that he did not breach any duty in maintaining the property that caused Jacobson’s injury and that the “rescue doctrine” did not apply to the “rescue” of a building. Ron further asserted that he was not liable for any act of Delaney, who was an independent contractor. To his motion, Ron appended, as his evidence, the promissory note and deed of trust, his own deposition testimony, as well as excerpts of the deposition testimony of Jacobson and Alarcon.

          In his response to the motion for summary judgment, Jacobson maintained that Ron exercised control over the demolition contractor, Delaney, and failed to ensure that signs were posted or fencing was erected to warn “citizens” and keep them away from the dangerous condition thereon and that the rescue doctrine was applicable because “[h]e was confronted with circumstances in which immediate action was necessary to save the building which was in imminent peril.” To his response, Jacobson appended the papers concerning the sale of the property, the partial payment agreement, and excerpts of the deposition testimony of Ron; Jacobson; Katherine, the trustee; and Caspar Canill and Robert Delaney of Delaney Construction.

          On May 19, 2008, the trial court granted summary judgment in favor of Ron

with respect to [Jacobson’s] claims that [Ron] (1) “is responsible for act [sic] or acts of its agents, representatives, and/or employees,” (2) violated the duty owed to [Jacobson] by “failing to maintain the property in a reasonably safe condition,” (3) “knowingly violated the terms of the deed of trust by destroying the structure on the property,” and (4) should be held liable under the rescue doctrine.

 

This appeal ensued.Summary Judgment

          Jacobson contends that the trial court erred by granting summary judgment in favor of Ron (1) by concluding that Ron “is not liable on [Jacobson’s] premises liability claims” and (2) by concluding that “the rescue doctrine is inapplicable to [Jacobson’s] general negligence claim.”

A.      Standard of Review

          We review a trial court’s ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

          First, the movant must conclusively establish its right to judgment as a matter of law. See Rhone-Poulenc v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

          Then, if the movant conclusively establishes its right to judgment, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. Steel, 997 S.W.2d at 222–23 (explaining that non-movant has no burden to respond to summary judgment motion unless movant conclusively establishes its cause of action or defense). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Dorsett, 164 S.W.3d at 661.

B.      Analysis

          1.       Premises Liability

          In his first issue, Jacobson contends that the trial court erred by concluding that Ron “is not liable on [Jacobson’s] premises liability claims.”

          By his petition, Jacobson asserted that Ron “failed to maintain the property in a reasonably safe condition or “to take adequate measures[,] such as fencing, to cordon off the area” and is “responsible for the acts of its agents, representatives, and/or employees,” referring to Delaney.

          To prevail on a negligence cause of action, a plaintiff must show proof of (1) a legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). “Whether a duty exists is a threshold inquiry and a question of law; liability cannot be imposed if no duty exists.” Id. By his motion for summary judgment, Ron challenged the duty and breach elements of Jacobson’s premises liability claim.

          Premises liability is a special form of negligence in which the duty owed to the plaintiff depends upon his status as an invitee, licensee, or trespasser on the premises. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). An entrant’s status depends on his purpose in coming on to the property. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996).

          An invitee is someone who enters the premises “with the owner’s knowledge and for the mutual benefit of both.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). A licensee “is a person who goes on the premises of another merely by permission, express or implied, and not by any express or implied invitation.” Texas Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936); Smith v. Andrews, 832 S.W.2d 395, 397 (Tex. App.—Fort Worth 1992, writ denied). A licensee’s presence on the premises is for his own convenience or on business for someone other than the owner. Smith, 832 S.W.2d at 397. A trespasser is someone who enters the property without lawful right or the consent of the possessor, merely for the trespasser’s own purposes. Weaver v. KFC Mgmt., Inc., 750 S.W.2d 24, 26 (Tex. App.—Dallas 1988, writ denied).

          Here, the record shows that Jacobson entered the property at the direction of the trustee, who held Ron’s note, and “on business for someone other than the possessor,” namely, the trustee. Hence, Jacobson was a licensee. Footnote

          The duty owed by the licensor to a licensee is not to injure the licensee willfully, wantonly, or through gross negligence, or, in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or make safe the dangerous condition. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). To prevail on his premises liability suit as a licensee, Jacobson must also show that (1) Ron was in control of the premises Footnote ; (2) a condition on the premises posed an unreasonable risk of harm; (3) Ron had actual knowledge of the danger; (4) Jacobson did not have actual knowledge of the danger; (5) Ron breached its duty of ordinary care by both failing to make the condition reasonably safe and failing to adequately warn Jacobson; and (6) Ron’s breach proximately caused Jacobson’s injury. See Miller, 102 S.W.3d at 709; County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002); Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 842 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d by agr.).

          Hence, as part of his burden, Jacobson must establish that he did not have actual knowledge of the condition on the premises that posed an unreasonable risk of harm. See Miller, 102 S.W.3d at 709; Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111, 121 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When the licensor has knowledge of a dangerous condition and the licensee does not, a duty is owed on the part of the licensor either to warn the licensee of the dangerous condition or to make the condition reasonably safe. See Miller, 102 S.W.3d at 709; Thomas, 234 S.W.3d at 121. If the licensee has the same knowledge about the dangerous condition as the licensor, then no duty to the licensee exists. Miller, 102 S.W.3d at 709; Thomas, 234 S.W.3d at 121. A licensor owes no duty to warn a licensee or to make a condition reasonably safe if the evidence conclusively establishes that the licensee perceived the alleged dangerous condition. Miller, 102 S.W.3d at 709. A licensee has actual knowledge of the condition if the condition was perceptible to him or if he could infer its existence from the facts within his present or past knowledge. Id.

          Here, the evidence shows that, by deposition, Jacobson testified that he was driving by the property and saw that demolition was occurring on the property. Depositions are proper summary judgment evidence when referred to or incorporated into a motion for summary judgment. See Rangel v. Lapin, 177 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). At the direction of the trustee, Jacobson attempted to stop the demolition. He parked his truck and got out and attempted to get the attention of the bulldozer operator. When he was unsuccessful, Jacobson decided to enter the property and try to approach the bulldozer. Jacobson testified that he could see that there was rubble on the ground and that “it was not level.” There was another worker in the area sweeping up the rubble. Jacobson testified that he was wearing dress shoes and that, while traversing the rubble on his way to the bulldozer, he fell and injured his knee.

          This evidence demonstrates that Jacobson had actual knowledge of the rubble that he claims created the risk of harm and caused his injury. See Miller, 102 S.W.3d at 709. Thus, the rubble was not a hidden danger. See Gonzalez v. Broussard, 274 S.W.2d 737, 738–39 (Tex. Civ. App.—San Antonio 1954, writ ref’d n.r.e.) (concluding that testimony established that child knew about rocks on playground and that he might slip and stumble, and that licensor owed no duty to warn or make condition reasonably safe). Therefore, Ron had no duty to warn Jacobson of the rubble or to make the area reasonably safe. See Miller, 102 S.W.3d at 709; Thomas, 234 S.W.3d at 121.

          We conclude that, as a matter of law, Ron has met his burden to disprove at least one element of Jacobson’s premises liability cause of action, namely, duty. See Cathey, 900 S.W.2d at 341. The rendition of summary judgment was proper on the ground that Ron did not breach a duty owed to Jacobson by “failing to maintain the property in a reasonably safe condition” or “to take adequate measures[,] such as fencing, to cordon off the area” or through any “acts of its agents, representatives, and/or employees” in that regard. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick, 988 S.W.2d at 748.

          Accordingly, we overrule Jacobson’s first issue.

          2.       Rescue Doctrine 

          In his second issue, Jacobson contends that the trial court erred by concluding that “the rescue doctrine is inapplicable to [Jacobson’s] general negligence claim.” Footnote           The rescue doctrine imposes liability for a rescuer’s injuries when a defendant negligently creates a situation that necessitates a rescue effort, and the rescuer’s subsequent injuries are reasonably foreseeable as a natural and probable result of such negligence. Daigle v. Phillips Petroleum Co., 893 S.W.2d 121, 122 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d by agr.). To hold an actor liable for its negligent actions, a plaintiff must show that the harm involved was foreseeable. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). “Foreseeability” goes to the third element of negligence, that of causation, and means that “the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates for others.” Id.

          Here, Jacobson asserted that Ron “negligently created a dangerous condition that placed property in immediate risk of imminent harm and knew it was foreseeable that [Jacobson] would intervene to rescue the property from destruction” and therefore “is liable under the ‘rescue doctrine.’” In his motion for summary judgment, Ron contended that there was no basis in governing authority for applying the rescue doctrine in this case, that is, to the rescue of property. We agree.

          In his sole Texas case to support his contention, Jacobson directs us to Snellenberger v. Rodriguez, in which the El Paso court of appeals determined that there was no recovery under the rescue doctrine for a widow whose police-officer husband responded to a traffic accident and died of a heart attack while controlling the crowd. 711 S.W.2d 138 (Tex. App.—El Paso 1986) aff’d, 760 S.W.2d 237 (Tex. 1988). In dicta, the court stated, “It has been held that to warrant the application of the rescue doctrine, it must appear by way of allegation or proof that some person’s life or property was then imperiled . . . .” Id. at 140 (emphasis added). The court neither applied this premise nor cited any authority.

          The supreme court has stated, and this court has recognized, that the purpose of the rescue doctrine is to “support[] the heroic acts of individuals who rush into danger to rescue others from imminent peril.” Snellenberger. v. Rodriguez, 760 S.W.2d 237, 237 (Tex. 1988); Daigle, 893 S.W.2d at 122–23. Here, it is undisputed that no other individual was in “imminent peril.” Rather, Jacobson asks this court to extend the rescue doctrine to buildings, to allow him to recover for injuries he sustained when, in an effort to protect another’s contract rights, he entered a demolition site, during demolition, and undertook to cross fallen building materials to stop a bulldozer. We can see no sound reason to extend the rescue doctrine on these facts.

          Accordingly, we overrule Jacobson’s second issue. Footnote

 

 

 

ConclusionWe affirm the judgment of the trial court.





                                                             Laura Carter Higley 

                                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Nuchia. Footnote