*3 4,1994, asserting judgment on March various ANDELL, Before HUTSON-DUNN and pleadings. Additionally, defects Donnell’s DUGGAN,1JJ. Spring Sports alleged breached no security to Donnell lack OPINION proximate was not cause of Donnell’s injuries. ANDELL, Justice. appeal,
In this are pleadings asked to decide Donnell amended his to cure security guards challenged by Spring whether the absence of at a some the defects inju- proximate Sports softball field was a cause of action and added a case, position prior Duggan, retired Justice who on December of this which was submitted n by assignment continues to sit for the dis- to that date. a fact to create sufficient per evidence Spring Sports negligence se—viola- Brand, 776 S.W.2d Beverage v. Code. Don- issue. See Casso tion of the Alcoholic nell also filed a counter-motion Sports, summary judgment against Spring must make all rea appeal, we On summary arguing that he had conclusive doubts and resolve all sonable inferences negli-
judgment proof on each element of his
University
Tex.
of the nonmovant.
favor
gence cause
action.
Carpet,
Big
Train
Science Cent.
Health
Sports’
granted Spring
mo-
The trial court
Inc.,
When
summary judgment and denied Don-
tion for
court,
are before the
counter-motions
partial summary judgment
nell’s motion for
all the
consider
the court
specifying
either rul-
without
its reason for
deciding
whether
evidence
*4
ing.
court ordered Donnell’s case
Botts,
v. Baker &
grant each motion. Rose
for
Wammaek dismissed
want
805,
(Tex.App.
[1st
816 S.W.2d
810
— Houston
Later,
Donnell filed a non-suit
denied).
1991, writ
Dist.]
against “Ten
in the trial court
court’s order does
When
order
and a Mexican” and obtained written
ruling,
upon for its
specify
grounds
the
relied
dismissing
from the court
the team from the
affirmed if
summary judgment will be
the
lawsuit.
meritorious.
the theories advanced are
Co.,
of Review
Standard
Security
N. Am. v.
Ins.
Insurance Co. of
407,
(Tex.App
[1st
410
. —Houston
one,
point
In
the
of error
Donnell contends
writ).
1990,
Although
must
no
we
Dist.]
Sports’
granting Spring
trial court erred
disposi
the trial court’s
separately consider
summary judgment
and
motion
motion,
reviewing
begin by
tion of each
partial summary judg-
his counter-motion for
summary judgment evidence before
all
(1)
argues:
ment. Donnell
issues of material
it
both mo
at the time
reviewed
exist;
fact
Plus breached
Rose,
R.C. that Softball Plus customers, injured, in deposi- phone which Donnell was stated to take calls and deal umpire tion he had served as an for “Ten four concessionaires to serve food and bever- Guys ages games, employee a a booth and Mexican” at other at the ticket entrance, always entry players park’s had at the and the conducted them- take the fee daytime sportsmanlike selves in a manner. Sanchez maintenance crews. Millik also stat- question park’s umpires independent oc- were testified that the incident ed A following Spring curred in the manner: batter contractors hired the teams and independent security from an an Sports “Ten White and a Mexican” hit did not hire fly ground games. infield before firm to monitor Plus did not touched any park post catch The run- rules before this incident Donnell had a chance to it. base, injured. scoring, stopped ner which Donnell was from third before
383 Proximate Cause Negligence Negligence and Gross elements to are three essential There of both cause consists Proximate (1) duty- legal negligence a a cause action: foreseeability. Union cause fact and (2) another; a person one breach owed Allbritton, Pump 898 S.W.2d Co. v. (3) duty; damages proximately of that (Tex.1995). in fact means that Cause Hous resulting from that breach. Greater was a substantial act or omission defendant’s Transp. Phillips, S.W.2d ton Co. injury which bringing about factor (Tex.1990). determining whether Id, occurred. otherwise would not have Sports negligent, we must consid person of ordi Foreseeability requires that a duty a company had er whether: anticipated the nary intelligence should Donnell; company breached protect omis negligent act or danger created security; duty by supplying on-site Nixon, Al at 549-50. sion. any owed to breach third though conduct inju proximate was a negligent that relieves superseding cause ries. is liability, negligence the actor’s actor be excused when superseded and will not Duty inquiry the threshold negli result of such a foreseeable conduct is Phillips, negligence case. S.W.2d City Mesquite, 830 gence. Travis v. depend by a owed landowner duties 94, 98 person injured on upon the status Store, 518 premises. Rosas v. Buddies Food Determining a defendant’s whether is clear that It plain proximate cause of negligence was person on an “invitee” —a Donnell was generally damages has been character tiffs premises response an Spring Sports’ *6 issue, by jury. a be decided as a fact ized mutually express implied invitation for Chico, See, at How e.g., 732 S.W.2d 315. El Allright, purposes. beneficial business See ever, recently decided several cases (Tex. Pearson, 686, Inc. v. 711 S.W.2d 689 of Texas have determined Supreme Court 1986), part App. [1st in Dist.] aff'd — Houston law, not a matter of fact. proximate cause as part grounds, and rev’d on other 735 in Allbritton, a appeals reversed In the court (Tex.1987). 240 summary judgment granted to defen premises general rule is that dant, had raised fact holding plaintiff that the duty protect an from owner has no invitee cause; Supreme proximate issues about criminal acts of a third who does appeals, the court of of Texas reversed Court supervi not under the owner’s control or act legal holding causation as there was no Haight Apartments, v. 814 Savoy sion. v. at 774. Doe matter of law. 898 S.W.2d 849, (Tex.App. [1st 853 — Houston Dallas, Inc., the Su Boys Clubs Greater denied). However, ex an Dist.] writ assumed, without de preme of Texas Court ception to rule arises when the third this Boys duty to owed a ciding, that the Club is a result of the party’s conduct foreseeable in inves care plaintiff to exercise reasonable negligence. premises owner’s that tigating that it breached personnel and (Tex.1995). But duty. 907 S.W.2d foreseeable, When such conduct is summary judgment granted affirming in duty to take rea premises has a owner defendants, Boys that the the court held prevent injuries to oth sonable measures law its proved a matter of Club had appears appear to him that if it or should ers plaintiffs in fact of not the cause conduct was rights in of their lawful the exercise others injuries. Id. at 475. if Determining may injured. Id. proximate cause of of a breach if the Legal cause is established examining interre several
damage involves fur no more than conduct does factors, important of which defendant’s the most lated plaintiffs that makes the the condition foreseeability the risk and the nish are the Allbritton, at 898 S.W.2d injury possible. Corp. the cause. See El Chico remoteness of defen- between the Poole, If the connection 775. 732 S.W.2d (a) plaintiffs injuries dant and the is too attenu- Softball Plus had been the site of a ated, legal then past disorderly cause is not established. number of occurrences. Perez, Lear Siegler, Inc. v. (b) Alcohol was served at the players spectators. consumed (e) Guys “Ten White and a Mexican” Foreseeábility 1. appeared game intoxicated before the in injured. which We assess all her husband was evi- dence that was before trial court to de- (d) Guys “Ten White and a Mexican” termine if the Guys acts of “Ten White and a reputation aggressiveness had a Mexican” and Wammack were foreseeable. intimidation and had been con- involved in When counter-motions are before the trial profani- frontations other teams when court, consider all the ty been had used and scuffles oc- had summary judgment in deciding evidence curred. grant whether to each motion. The sum- (e) security guards saw She' at the mary judgment evidence consisted of the fol- night on the or at lowing: game. other deposition testified response In its to Donnell’s counter- played games “Ground Zero” at Softball motion summary judgment and on year Plus for at least a before the incident appeal, Spring Sports argues Don Evette question engaging any fights. without nell’s hearsay, affidavit was not based on deposition Sanchez testified in that he personal knowledge, and improper contained umpired previous had games for “Ten conclusory statements. The trial court did Guys,” they White conducted them- thus, objection; complaint rule on the sportsmanlike selves in manner. Tex.R.App.P. 52(a). is waived. (3) Sanchez also testified he had seen 10 to umpiring games small while Cause Fact parks other ball but had never witnessed Cause fact means the defen fight “like this one” before. dant’s act or omission was a fac substantial deposition Wammack testified in bringing injury, tor about which would “Ten and a Mexican” had *7 Allbritton, not have otherwise occurred. played “Ground Zero” before without argues Spring S.W.2d at 774. Donnell fighting. Sports negligent by permitting was the con (5) Donnell, Sanchez, and testi- Wammack by to supply cessionaire sell alcohol and fight fied the occurred after Donnell threw ing security. Spring on-site He claims a ball that hit a base runner for “Ten Sports protect breached its him from Guys.” if the harm he Even suffered. we assume (6) Sanchez and both Wammack testified Spring Sports negligent selling in beer fight very quickly the started and was stand, that, say at the concession we cannot very only up quickly broken lasted beer, but for sale of Donnell would —it to 90 seconds. persuaded Nor been beaten. are security guards that the ejected Sanchez testified he would have absence of injuries. in having fact of Donnell’s
Donnell from the hit an softball, opposing player with the but the presence guards We do not believe the of fight erupted act. within seconds that. prevented fight from would either have this deposition Donald Millik testified occurring, brought it to an end sooner or incident, that before this no rules were players managed than the to halt themselves alcohol, posted park prohibiting ball presence security guards it. While abuse, profanity, or physical Spring could deter criminal act of third Sports employ security guards. did not seeking easy opportunity an to commit crime, Evette Donnell an from submitted affidavit we cannot conclude this presence in which she testified: their deter between would Therefore, trial we hold that the hotly athletic en- of action. participants in a contested coun- addition, Donnell’s ferocity fight court did not err In of this deavor. summary judgment. partial ter-motion for severity injuries were of Donnell’s extraordinary. small While scuffles two, Donnell ar point of error foreseeable, of this kind have been granted gues the court erred when Accordingly, we hold as a matter was not. his defective summary judgment based on was not sufficient estab- law the evidence giving opportunity him an pleadings without Spring Sports’ action or omission lish that he had he concedes that replead. Yet injuries. proximately caused Donnell’s alleged pleadings to cure amended granted the trial court long before defects Negligence Per Se Therefore, summary against him. Donnell also contends the trial not err trial court did we hold that the granting Spring Sports’ motion for erred in on the summary judgment based se summary judgment negligence per on his record. pleadings amended argues He cause of action. second Donnell’s first and We overrule negligence per Sports committed se violat points of error. Beverage ing of the Alcoholic section 2.02 Code, liability imposes on commercial which of Prosecution for Want beverages damages Dismissal
sellers of alcoholic obviously resulting from the sale of alcohol to error three point Donnell contends TexAloo.Bev.CodeAnn. intoxicated adults. dismissing his claim the trial court erred 1995). (Vernon argues § Donnell also 2.02 against for want of Wammack per Spring Sports negligent se orig- judge who that the The record indicates Tex. violating section 69.13 Code. case, the Honorable inally presided over the 1995). (Vernon § Ann. Alco.Bev.Code 69.13 O’Neill, parties to both com- Harriet ordered provision is an administrative Section 69.13 Judge joint form. plete a ease information li authorizing liquor of a the cancellation parties stated failure letter to the O’Neill’s peace if a breach of the occurs on the cense result in dismissal file the form would premises improper licensee’s as the result warning, Despite the court’s sanctions. supervision. disagree Don We with both of complied never counsel Wammack’s cause of action nell’s contentions. Donnell’s order. theory precluded negligence per under a se is granted trial court April On Code, provides which section 2.03 summary judg- Spring Sports’ motion exclusive shop that the dram statute motion for ment and Donnell's denied liability pro of commercial basis for civil Sports. against Spring Ann. of alcohol. TexAlCO.Bev.Code viders action Wammack Donnell’s cause of (Vernon Beard, 1995); § 2.03 Graff *8 April On in either motion. was not included Grantham, 26, 1994, for Don- counsel James err in hold that the trial court did not We nell, Cooper, for Wam- counsel and Michael summary Sports’ motion mack, Honorable before the Jack appeared negligence per se judgment on Donnell’s O’Neill, hearing. judge, for a court visiting cause of action. place at following exchange took The hearing: for Partial Counter-motion discovery has of The matter The Court: Summary Judgment An offer has presented to the Court. been point of error one contends in Donnell also for his counsel made defendants’ been denying his counter- court erred the trial designat- not acceptance of those witnesses partial summary judgment on his motion for order and the except pretrial in the ed already negligence cause of action. We say? does the defendant defendant —how grant- not err in trial court did held Plaintiff, your Honor. Mr. Grantham: on summary judgment against Donnell ing Plaintiff, sorry. I’m The negligence per se causes Court: negligence and his honor, Comm’n, Mr. Grantham: Your I would ob- Hubert v. Illinois State Assistance ject calling to him (Tex.App. witnesses that are — Houston 1993, writ); pretrial on Dist.] listed his order. He has no Enter. [14th Tramco one_ Ass’n., Independent not filed Am. Sav. [UJnder court’s rul- ing, (Tex.App. under the court’s order Worth it does — Fort writ). require parties all to participate.. He failed participate. to As to this date he holdWe Donnell did not receive ade joint pretrial stipu- still has not filed a ... quate Judge notice before Jack O’Neill dis lation or orders. prosecution. missed case for want his of The The Court: This is a 1992 filed case and caught record shows Donnell’s counsel was it’s been on the trial docket the 152nd off-guard given virtually no chance to District Court for almost a week respond Wammack’s to to verbal motion dis half. Do I hear a motion to dismiss? prosecution prompt miss for of want Yes, Cooper: Mr. if Judge, they’re ing Contrary court. to the statement announcing ready for trial we do move the order, in the court’s the statement of facts be prosecution. case dismissed for want of hearing from the indicates Donnell was not granted. The Court: is Motion ready proceed asked to whether he was circumstances, trial. on Based these we hold argues implies the record the trial its court abused discretion dis actually against the court’s dismissal was missing against Donnell’s cause of action support argument, To Wammack. he Wammack want following relies on the facts: Wammack’s complied Judge counsel never Harriet point We Donnell’s error. sustain third order; O’Neill, Judge O’Neill’s Jack grant- We affirm the trial court’s visiting judge, par was unfamiliar with the ing Spring Sports’ summary judg- motion for ties. ment and Donnell’s counter-motion dismissing court’s order ex- judgment. ease We reverse plicitly states Donnell’s cause of action dismissing Donnell’s case against Wammack was dismissed for prosecution want Wammack for want prosecution based on his refusal to proceed- announce and remand that for further ready for trial. It is ings. also clear from the
record that the court understood counsel, HUTSON-DUNN, J., Cooper, Wammack’s Michael who dissents. seeking prosecu- dismissal for want of HEDGES, J., requested a vote to Therefore, hold tion. there no evidence en if the should heard determine case support the record Donnell’s contention Tex.R.App.P. banc, (e) 79(d), pursuant actually Judge Jack O’Neill intended Tex.R.App.P. 90(e). dismiss Wammack’s case instead of Don- nell’s. COHEN, MIRABAL, WILSON, ANDELL, TAFT, DUGGAN, JJ., voted Generally, appel standard against en banc consideration. prose late review of dismissal for want of clearly trial court OLIVER-PARROTT, C.J., cution is whether did not Rotello, 671 abused its discretion. State v. participate. *9 (Tex.1984) 507, (quoting Bevil JJ., O’CONNOR, HEDGES dissented Johnson, 157 Tex. from the of en banc consideration. denial (1957)). However, Donnell offers an alter argument: nate the court’s dismissal violated O’CONNOR, J., joins Justice HUTSON- process due and the Texas Rules of Civil DUNN’s dissent. given proper
Procedure because he Justice, HUTSON-DUNN, dissenting. process requires adequate notice. Due because, I on given respectfully notice be before an order is entered dissent based presented dismissing a suit for want of evidence ease, question I in this feel that there is well as causation.
fact as to as C.W.C., Appellant. In the Matter of that alcohol was Affidavits demonstrate No. 01-95-00179-CV. drinking by appellees, encour- served wine, drink, or aged giving a free beer Texas, Appeals Court with each ticket. Alcohol was consumed Dist.). (1st Houston spectators. day of players and On the team, fight, Ten White members Feb. 1996. Mexican, drinking, using Guys and a were appeared intoxicated profanity, already April Rehearing Overruled rules, game. no secu- There were before anyone super- rity or available control situations; tense situations one
vise probably becoming foresee as exacer-
could unsupervised by the and uncontrolled
bated specta- as as the
drinking the teams well were told not interfere
tors. Referees
fights. The team that was involved this aggressiveness. It
fight was known its reputation and con-
had intimidation other teams. Other
frontations with involving had this
and scuffles occurred
team. injuries this man sustained were ex-
treme and serious. no one to assist With nothing except
him he could do assume position
fetal while an entire team beat and
kicked him. He rendered an uncon- state, attempted get up and was
scious again. He kicked in the
knocked down midsection, kidney, lost his his
head and torn,
intestine was he sustained bruised
liver, injuries bleeding, internal to and had eyes, to the head.
around lacerations agree of this
I scuffles occur promotion of
type, but with introduction and by Spring of alcohol
the additional element question of fact to wheth-
Sports there is injuries been as
er of not would have inter- if there had been someone to
serious in his behalf or if there had been
cede drinking by Spring encouraged
alcohol or
Sports. question is a of fact as There Sports’ was a substantial
whether and ex- bringing about the serious
factor injuries appellant that the sustained.
tensive
I would reverse the pro- further and remand this case for
ceedings.