Barefield v. City of Houston

846 S.W.2d 399, 1992 Tex. App. LEXIS 3117, 1992 WL 369046
CourtCourt of Appeals of Texas
DecidedDecember 17, 1992
DocketC14-91-00639-CV
StatusPublished
Cited by29 cases

This text of 846 S.W.2d 399 (Barefield v. City of Houston) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barefield v. City of Houston, 846 S.W.2d 399, 1992 Tex. App. LEXIS 3117, 1992 WL 369046 (Tex. Ct. App. 1992).

Opinions

OPINION

JUNELL, Justice.

Appellants appeal from summary judgments granted in favor of appellees. Appellants brought suit against the City of Houston, Pace Concerts, and AAA Searchlight Systems, Inc., d/b/a Southwest Concert Security to recover damages for personal injuries sustained by appellants following a rock concert. We affirm.

Appellants and their friend, Nathan Ma-rek, attended a rock concert at the Sam Houston Coliseum (Coliseum), on February 26, 1989. Appellants parked across the street from the Coliseum in an underground parking garage owned and operated by the City of Houston. When the concert was over around 11:00 or 11:30 p.m., appellants and Marek left the Coliseum and began walking toward the parking garage. About 20 to 30 feet outside the Coliseum doors the three men were approached by a group of seven to ten youths. The youths demanded the concert t-shirt Marek was wearing. Marek refused and was attacked, beaten and robbed.

Barefield went to Marek’s aid. The youths clustered around Barefield and Ma-rek. One youth pulled a knife. Barefield told the group he had a knife and to leave him alone. After Barefield said this, four or five members of the attack group pulled their knives. Upon seeing the knives, Ma-rek and Zacharias began running back across the street toward the Coliseum. When Barefield saw Marek and Zacharias running, he, too, began running across the street. As Barefield attempted to run across the street, he was hit by a car, resulting in a compound fracture to his leg. The driver of the car did not stop to render assistance. Barefield called to his friends [402]*402for help. Marek and Zacharias returned back across the street and moved Barefield onto the sidewalk.

Marek attempted to return to the Coliseum to get help, but the group of youths stood between him and the building. A bystander saw the extent of Barefield’s injury and suggested Marek and Zacharias carry Barefield to their car and take him to a hospital. Marek, Zacharias and the bystander picked up Barefield and began carrying him toward the car. They were confronted again by the youths. By this time there were 15 or 20 youths in the group. The group demanded Zacharias’s t-shirt and jewelry. When he refused, the group assaulted him, breaking one rib and stabbing him in the back. The attackers began throwing rocks and bottles. Marek ran back to the Coliseum and informed a police officer inside the Coliseum about the attack.

The officer said he would call an ambulance. When Marek returned to the scene, Barefield and Zacharias were lying on the ground. Barefield was yelling he thought he was going to die. A taxi drove by and the driver offered appellants a ride to the hospital. The taxi driver took Barefield and Zacharias to the emergency room at Ben Taub Hospital. Marek drove his own vehicle to the hospital.

Barefield had surgery on his leg, was hospitalized for one week and has had four subsequent surgeries. Barefield was not injured in the confrontations with the youths; his only injury was caused by being struck by a car when he ran into the street. Zacharias was not treated at Ben Taub Hospital. He left the hospital around 2:00 a.m. and arrived at his home in Port Lavaca, Texas around 5:00 a.m. The following day, Zacharias was treated by a physician in Port Lavaca. Zacharias wore a body wrap for eight weeks. His stab wound did not require sutures.

Pace Concerts (Pace) produced the rock concert. Pace leased the Sam Houston Coliseum from the City of Houston (City). Pace hired AAA Searchlight Systems, Inc., d/b/a Southwest Concert Security (AAA) and off-duty Houston Police officers to provide security for the concert premises. The security guards and officers were stationed inside the Coliseum; none were stationed outside the Coliseum doors.

Barefield and Zacharias brought suit against appellees for negligence in failing to provide adequate security for the premises. Marek was not a party to the suit. Appellants also alleged appellees were negligent because appellees knew or should have known of the unreasonably dangerous condition, i.e., the potential for criminal activity, and failed to correct the condition or warn appellants. Appellants further alleged their injuries were caused by a condition or use of tangible personal or real property owned and operated by the City of Houston.

Pace, AAA and The City of Houston filed motions for summary judgment, which the trial court granted. In eight points of error, appellants argue the trial court erred in granting appellees’ motions for summary judgment.

A summary judgment will be upheld on appeal only if the movant has conclusively established there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Davis v. Houston Independent School District, 654 S.W.2d 818, 820 (Tex.App.-Houston [14th Dist.] 1983, no writ).

The summary judgment evidence is considered in the light most favorable to the party opposing the motion. Gonzales v. Global Truck & Equipment, Inc., 625 S.W.2d 348, 350 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ). All doubts concerning the existence of a genuine issue of material fact should be resolved against the movant. Id. All conflicts in the evidence must be disregarded and the evidence that tends to support the position of the non-movant is accepted as true. Id.

The question to be determined on appeal is whether the summary judgment 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 plaintiffs cause of action. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

[403]*403The essential elements of a cause of action based on negligence are a legal duty owed by defendants to plaintiffs, a breach of that duty, and damages proximately resulting from that breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Duty is the threshold inquiry. To establish tort liability, a plaintiff must prove the existence and violation of a duty owed to him by a defendant. Id.

PACE’S DUTY

In points of error one, four and seven, appellants assert the summary judgment granted in favor of Pace was granted in error because genuine issues of material fact exist as to whether Pace owed a duty of care to appellants and as to whether appellants were contributorily negligent.

Pace, producer of the concert, leased the Coliseum from the City of Houston. The terms of the lease dictated the extent of Pace’s control over the Coliseum. Appellants argue the sidewalk where the first attack took place is part of the premises under Pace’s control. Pace leased only the building and not the outer premises, such as the sidewalks or the common area outside the Coliseum’s entrance. The lease agreement required Pace to provide security only within the Coliseum.

As a general rule, a defendant has no duty to prevent the criminal acts of a third party who does not act under the defendant’s supervision or control. LaFleur v. Astrodome-Astrohall Stadium Corp.,

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Bluebook (online)
846 S.W.2d 399, 1992 Tex. App. LEXIS 3117, 1992 WL 369046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barefield-v-city-of-houston-texapp-1992.