*1 SPECTRUM, The SCIENCE
INC., Petitioner,
v. MARTINEZ, al., Respondents.
Arthur et
No. 96-0496.
Supreme Court of Texas. 18,
Argued Dec. 1996.
Decided March 1997.
Rehearing April Overruled Flygare, Rosentreter,
Jack John David Lubbock, petitioner. Boeme, Nunley, Ray
J. Ken Flagason, Lubbock, Black, Antonio, Thomas San respondents.
CORNYN, Justice,
opinion
delivered the
PHILLIPS,
in which
Chief
Justice,
SPECTOR, OWEN, BAKER
and
ABBOTT, Justices, join.
and
premises liability
In this
case we decide
Inc.,
whether Science
which occu
pied premises adjacent to that in
Ar
which
injured,
thur
legal duty
Martinez was
owed a
to Martinez
virtue of its control of the
occurred,
where his
or its
creation of a
condition. Based on
summary
judgment
proof
and
that it did not exerсise
control over the
the trial court
granted the motion. The court then severed
against
Martinez’ claims
alleged against
remaining
from those
de
fendants,
rendering
summary
thus
final
judgment.
The court of
reversed
remanded,
“by
holding
condition in the area
tо the leased
controlled,
became
—
responsible.”
S.W.2d -, - (citing
Stores,
(Tex.1993)).
disagree
appeals’ interpretation
with the court of
applied
Alexander as
to the facts of this
*2
9H
erected,
it had
partition wall
follow,
its
over the
we affirm
reasons that
but for the
ceiling,
through
50th Street Caboose’s
judgment.
compressor.
and out to the
7, 1990,
an
received
Martinez
On June
alleged that
the defen-
The Martinezes
through a live
when he cut
electric shock
“were
dants,
including
Spectrum,
scope
while in the course and
electrical wire
allowing a dan-
in
negligent
and members
employment. Martinez
and/or
of his
Martinezes)
premises
(the
to exist on
gerous condition
family
his immediate
of
regard to
Furr’s,
they
or with
defendants, including
which
controlled
numеrous
sued
adjoining premises.”
Spectrum, on
Bain,
Inc.;
Executor of the
B.
Robert
alleged that
Martinezes
Gibson, Sr.;
specifically, the
& Fitz- More
Smith
Estate of H.R.
dangerous con-
Caboose;
Spectrum created
and Science
patrick,
The 50th Street
d/b/a
premises
Inc.,
on the 50th Street Caboose’s
of the
dition
the sublessee
said
partition wall over
“by constructing a
adjacent to those where Martinez
premises
way
an unknown
in
a
as to create
injury.
wiring
such
working
time of his
was
at the
such as
disguised danger to individuals
and
Caboose, a
in
restaurant
The 50th Street
Plaintiff,
Martinez.”
Arthur
Lubbock,
building
occupies part
large
aof
Sr.,
summary judgment, Sci-
Gibson,
In
but
its motion
by the Estate of H.R.
owned
Furr’s,
part that it owed
Spectrum claimed in
formerly occupied by
ence
to аnd
leased
it had no
legal duty to Martinez because
point partitioned the
no
Furr’s at one
control,
over,
any right
duty to
nor
or
portions to smaller
control
building and subleased
occurred.
the accident
premises
a
where
Spectrum subleased
businesses. Science
and,
responded that Science
part of its The Martinezes
portion
building
as
partition wall to
sublease,
Spectrum caused the
agreed
partition
to construct a
wall
way that it created
in such a
spаce.
It erected the
constructed
to enclose its leased
negli-
that “in connection with
January
condition
partition in
herein was a
gent
of other co-defendants
acts
later,
year
Fitzpatrick,
&
About one
Smith
injuries. Sci-
proximate cause” of Arthur’s
(S F)
premises adjacent
Inc. & subleased the
Spectrum replied
produced
and
sum-
ence
began
construct
and
to
in-
that it did not
evidence
Martinez was em-
the 50th Street Caboose.
stall, reroute,
compressor’s
or alter the air
injured.
F
Al-
ployed
S & when he was
any way.
in
wiring
contrac-
though S & F had hired an electrical
course, summary judgment for a defen
its
& F’s foreman
Of
tor to rewire
S
ne
the defendant
proper
dant is
when
instructed
to remove conduit and
of each of the
rewiring.
gates at least one elemеnt
to facilitate the
electrical wires
recovery,
v. Gen
plaintiff’s theories of
Gibbs
Following
assurances
the foreman’s
(Tex.
827,
Corp.,
828
Motors
450 S.W.2d
power
no
to the 50th Street Ca-
eral
there was
1970),
conclusively
establishes
began
pleads
or
space, Martinez
to remove the
boose’s
defense.
of an affirmative
doing,
cut into a hot wire
each element
wiring.
In so
he
Auth.,
Basin
589
v. Clear Creek
Houston
and was shocked.
(Tex.1979).
reviewing
When
678
S.W.2d
Later,
although the
it was learned that
all
judgment,
take аs true
summary
we
power to the 50th Street Caboose’s
electrical
in
nonmovant and
to the
evidence favorable
off, the hot wire
premises had been turned
in the non-
every
inference
dulge
reasonable
to an air
Martinez cut was сonnected
Property
Nixon v. Mr.
favor.
movant’s
servicing
conditioning compressor
(Tex.
Co.,
549
Management
compressor
The
Spectrum’s premises.
1985).
budding over the
on the roof of the
mounted
summary
wire,
reversing
Spectrum’s
In
hot
as it was
The
50th Street Caboose.
primarily re-
court of
judgment the
traveled from Sci-
originally routed in
Stores, Inc.
in
ceiling,
lied on our decision Wal-Mart
premises through its
ence
(Tex.1993).
Alexander,
separate
In
from the rest
occupier
premis-
that an
held
building,
legally
adjacent premis-
responsible
es is
exercise control over the area
to its
actually
es that it
controls. Id. at 324.
way analogous
in a
in
to the facts
conclusion, however,
Alexander. This
does
plaintiff
injuries
*3
the
sued for
inquiry.
not end our
tripped
shе suffered when she
over a con-
ramp leading
parking
crete
from the
lot to
A
summary judgment
motion for
must it
budding
the sidewalk in front of a
Wal-Mart
expressly present
grounds upon
self
the
Although
owned.
tion, though not in control even he or she is Spectrum argues occurs, Science premises when the owes appeals relying court of erred in оn Alexan duty a of due care. See Denton v. der to find a regarding fact issue existed (Tex.1986) Page, (citing 701 S.W.2d Spectrum’s liability Science for a Gehring, Strakos dangerous adjacent premis condition on the (Tex.1962)). Spectrum’s Science es, Spectrum bеcause Science had no control summary judgment addressed the issue premises over the on which Martinez was of its control of the where Martinez’ injured. agree. injury occurred. It did not address the alle gation dangerous that it had created а condi summary judgment The evidence shows ground in tion. Because it did not raise this (1) sublease re- motion, Spectrum its we hold that is quired dividing it to erect a wall to enclose summary judgment not entitled to a on this (2) building; erecting its within the in claim. wall, install, Spectrum reroute, mоdify, change feeding or the wire Accordingly, ap- court we affirm the electricity compressor servicing to the air its peals’ judgment and remand this cause to the (3) space; the 50th Street Caboose oc- later proceedings trial court for consistent further cupied and controlled the opinion. with this (4) Spectrum; to Science and Martinez was injured performing when work for and on the premises. Viewing 50th Street Caboose’s ENOCH, Justice, joined by GONZALEZ light
this evidence in the most favorable to HECHT, Justices, dissenting. Martinezes, we hold that the court of join I in conclusion that Sci- the Court’s relying By in erred on Alexander. simply law erecting a wall around its leased ence established as a matter of own occupy possess premis- Spectrum to the trial court record and that it did not or cited injured. es on which Martinez There- it “neither controlled nor was reiterated fore, premises occupier it is not hable as a on the tried to control the construction work not, however, injuries. for I Finally, Application his do in premises.” its join Spec- the Court’s conclusion that Spec- Writ of Error to this trum failed to address in its motion sum- trum that it “did not control ... asserts wire) Martinez’s claim that he (i.e., ‘instrument’ that caused Mar- injured by dangerous condition created injuries.” tinez’s Spectrum. The reads Court Frankly, I fail to see what more Science Spectrum’s motion with narrow a too vision. challenge argued could have Judgment should rendered for Science Martinez’s claim that created Spectrum. Beсause the does not do *4 condition. The causes of action so, I dissent. against Spectrum are either asserts Science The seminal on us case the issue before is that it controlled the on which he Stores, Alexander, v. injured, Spectrum creat- or that Science (Tex.1993). In S.W.2d 822 as not- injured dangerous ed condition which the by premis- ed the we concluded that a him. Science motion for sum- occupier es who constructs and maintains an clearly presents to the trial improvemеnt may injury that causes be ha- challenges court to claims. The Court both injury although improvement ble the the addressing errs in not the latter issue. premises actually is not located on the occu- issue, Regarding this con latter pied. Generally speaking, Id. at 324-25. Spectrum “replied cedes that Science premises occupier duty one who is a has a produced summary judgment evidence that it guard against dangerous to conditions install, reroute, [electrical or alter the property occupies on it or controls. In alleges inju that Martinez caused his lines]” Alexander, purposes we held that for of lia- —ry. It is also true that S.W.2d -. bility, may improvements one also “control” Spec Martinez nowhere asserts that Sciencе though it constructs and maintains even Rather, any things. trum did of those Mar improvements those physicahy are not on tinez seems to claim that Science words, “occupied” premises. Id. other if by erecting space, a wall to enclose its оwn premises occupier dangerous creates a con- essentially misrepresented adja that on the adjacent, unoccupied dition on property, cent, no ex unenclosed there were injuries can be held hable fоr caused to an- isting dangerous conditions. have not by other that condition. case, and Martinez has not cited us decided a says Spec- The Court errs when it elsewhere, authority any supporting this trum failed to address this latter matter in contrary, theory liability. To the novel summary judgment. its motion for In its analogous circum have concluded under summary judgment, Spec- dangerous only by creating stances argued: trum injured by condition is one liable to others Paye, that condition. See Denton summary judgment “the uncоntradicted (“dangerous 831 for the condition evidence establishes aas matter of law building SPECTRUM, INC., storage because it neither that SCIENCE did owned, occupied nor controlled the duty not control nor have a ... to control condition”); nor did it creаte the the area where the accident occurred....” (imposing at 324 on Spectrum argued also it “nei- “duty the defendant a of reasonable care to controlled, ther nor work tried control the safety ramp once it built maintain gоing [adjacent at property].” on it”); control over see also RE and exercised 364(a) (1965) § Responding appeal to Martinez’s from the (Second) STATEMENT of Torts summary judgment, (explaining possessor of land is liable trial court’s by an a condi- to another for caused ”) possessor (emphasis
tion “the has created
added). Spectrum challenged Martinez’s a dangerous
claim that it created condition Further, adjacent property.
on the presented summary judgment evi-
dence, not undisputed, which was that it did control over “hot” wire
exercise electrical
running through adjacent property on injured. Consequently,
which Martinez was law, a matter of cannot
as any injury liable for that elec- caused wiring.
trical
Judgment should be for Science rendered
Spectrum. not do Because the Court does
so, I dissent. *5 STENNETT, Appellant,
Mark Texas, Appellee.
The STATE
No. 1013-95. Texas, Appeals of Criminal
En Banc.
Oct. Schneider, McKinney, Troy
Stanley W. Moran, Houston, appellant. Tom Houston, MeCrory, Atty., Dan Asst. Dist. Austin, Paul, Atty., State’s Matthew State. court en
Before the banc.