Carreiro v. Wiley

976 S.W.2d 829, 1998 WL 320406
CourtCourt of Appeals of Texas
DecidedJuly 30, 1998
Docket01-97-00175-CV
StatusPublished
Cited by7 cases

This text of 976 S.W.2d 829 (Carreiro v. Wiley) 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
Carreiro v. Wiley, 976 S.W.2d 829, 1998 WL 320406 (Tex. Ct. App. 1998).

Opinions

OPINION

O’CONNOR, Justice.

Robert Carreiro (the plaintiff), appeals from summary judgment granted in a lawsuit arising out of the murder of his daughter, Kynara Carreiro.

Facts

The facts giving rise to this lawsuit are undisputed. Kynara, age 7, and Kristin Wiley,. age 10, were murdered in the Wileys’ house by Rex Mays. At the time of the murders, the Wileys were at work and no one was on the premises supervising the girls. Mays was tried, convicted, and sentenced to death for the girls’ murders.

The summer of 1992 was the first time Edward and Rebecca Wiley, Kristin’s parents, left their children at home alone during the work day. They instructed Jeromy Garza Wiley, age 14, Kristin’s half-brother, to keep all doors and windows locked, report by telephone at least hourly on their activities, and to keep Kristin with him, have her stay inside with the doors locked, or, if they were going to be separated, see to it that Kristin went to a neighbor’s house. On the day of the murders, Jeromy left the house, leaving his sister and her friend, Kynara, home alone. He did not lock the front door.

The Wiley parents knew before the day of the murders that Jeromy did not always report as required, “as many 14-year-olds, he had a lapse in judgment ... about reporting on time.”

The plaintiff sued Edward, Rebecca, and Jeromy Wiley under the wrongful death act and the survival statute.1 Tex. Civ. Prac. & Rem Code §§71.002(b), 71.021 (1998). The Wileys will be referred to as the defendants. The plaintiff sued the Wiley parents for breaching their duty of care to Kynara, and sued Jeromy Wiley for negligence in failing to perform the duties delegated to him by his parents.

The defendants moved for summary judgment on the ground that Mays’ criminal act was the superseding cause of Kynara’s injuries and death. The trial court granted the defendants’ motion for summary judgment.

Standard of Review & Burden of Proof

Summary judgment is proper when a defendant establishes, as a matter of law, there are no issues of material fact concerning one or more of the essential elements of the plaintiffs cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Pena v. Van, 960 S.W.2d 101, 103 (Tex.App. — Houston [1st Dist.] 1997, pet. filed).

On appeal, when reviewing the sufficiency of the grounds, we will affirm the summary judgment if the motion for summary judgment includes any valid grounds to support the judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996); Pena, 960 S.W.2d at 103. We will not consider any ground for reversal that was not expressly presented to the trial court by [831]*831written motion, answer, or other response to the motion for summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Pena, 960 S.W.2d at 103.

When a motion for summary judgment is based on the insufficiency of the nonmovant’s pleadings, on appeal we assume all allegations and facts in the pleadings are trae. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); see also American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434 (Tex.1997) (“[I]t is not incumbent upon a plaintiff nonmovant to produce evidence supporting the allegations made in her pleadings....”). We indulge every reasonable inference in favor of the nonmovant and resolve any reasonable doubt in its favor. Science Spectrum, Inc., 941 S.W.2d at 911; Pena, 960 S.W.2d at 103.

The Pleadings

In his petition, the plaintiff alleged the Wiley parents negligently delegated the responsibility to supervise Kristin, their daughter, and Kynara, the plaintiff’s daughter, to Jeromy, who they knew or should have known lacked the necessary discipline to undertake that responsibility; and for negligently failing to check on the girls when Jeromy did not report each hour, as he was required. The plaintiff alleged that it was reasonably foreseeable that when the Wiley parents failed to properly supervise the young children, it would expose the children to hazards likely to result in serious bodily injury or death.

The defendants filed a general denial. In their motion for summary judgment, the defendants argued that, no matter what theories the plaintiff asserted, they could not be held liable for their negligence because the chain of causation was severed by the willful, intentional, and criminal actions of Mays. The defendants claimed Mays’s criminal actions were a superseding cause of the plaintiffs injuries. The defendants did not argue they were not negligent or that they could not have foreseen the criminal act. Therefore, for purposes of this appeal, we must assume that the plaintiffs allegations regarding negligence and foreseeability are true.

In his response to the summary judgment, the plaintiff reiterated that the Wiley parents were negligent for leaving the children unsupervised, the defendants’ negligence was a proximate cause of Kynara’s death, even though May’s criminal acts was also a proximate cause, and the incident was foreseeable. The defendants did not file a reply to the plaintiffs response.

Foreseeability & Superseding Cause

In point of error two, the plaintiff argues the defendants did not prove, as a matter of law, that Mays’s violent, criminal act was not the foreseeable result of, and thus not proximately caused by, their failure to properly supervise Kynara and Kristin. We agree.

On this summary judgment record, the defendants did not allege, much less prove, that them negligence was not one of the causes of the death of Kynara. The defendants raised the issue that May’s criminal acts were a superseding cause. However, the defendants never stated in their motion for summary judgment that their negligence was not a cause of Ky-nara’s death or that the injury was not foreseeable.2 In their motion, the defendants alleged:

10. ... [Tjhis action is ripe for summary judgment on the Plaintiffs cause of action because the willful, intentional, and criminal act of Rex Mays constitutes a superseding cause of the injuries, thereby insulating the Wiley Defendants from any liability for their alleged negligence.
[832]*83211. The rule of [Restatement (Second) of Torts] § 448 as adopted in Nixon [v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985),] contains an exception that the defendant might be held liable if the criminal act of the third party is a foreseeable result of the defendant’s allegedly negligent actions.

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976 S.W.2d 829, 1998 WL 320406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carreiro-v-wiley-texapp-1998.