Hancock v. City of San Antonio

800 S.W.2d 881, 1990 WL 255552
Court of Appeals of Texas·Decided October 10, 1990·No. 04-89-00258-CV·Published·Cited by 34 cases

Opinions

OPINION

CHAPA, Justice.

This is an appeal from a wrongful death, survival action resulting from the death of Ella Saenz, who died from injuries received in an explosion at the Chateau Orleans Apartments in San Antonio, Texas. Her estate and daughter, Mae Hancock, sued the owners of the apartments, Brentwood Financial Corporation, the City of San Antonio and its agent City Public Service Board (CPS), the gas supplier, and Fisher Controls (Fisher), the manufacturer of a gas pressure regulator, alleging negligence actions and product liability/strict liability claims.

The appellants settled with the apartment owners prior to trial and the trial court granted partial summary judgment for the city and CPS on the products liability/strict liability claim as well as on other causes of action not made the subject of this appeal. The negligence cause of action was tried to a jury which found the owners of the apartment 80% negligent, the deceased 15% negligent, and the daughter, Mae Hancock, 5% negligent. Moreover, the jury awarded no damages.

The dispositive issues before us are:

1. whether appellant Mae Hancock, daughter of the deceased, could be con-tributorily negligent, and if not, was such a finding by the jury harmful error under the attending circumstances; and
2. whether the court erred in entering partial summary judgment which dismissed the appellants’ cause of action for products liability against the City of San Antonio and its agent, CPS.

The appellants initially argue that appellant Mae Hancock, daughter of the deceased, had no duty to act or protect against the danger of an explosion and, therefore, a finding of contributory negligence, as to her, was error. The only evidence that might indicate that Mae Hancock was negligent was her own testimony. Ella Mae Hancock, daughter of Ella Saenz, testified that her mother was 64 and widowed at the time of her death. On cross-examination, she testified that she would visit her mother about every weekend and, when she did so, she occasionally smelled natural gas. She testified that she had talked to her mother about the smell and her mother told her that she had reported the gas smell to the apartment managers. Mae Hancock testified that she checked some of the things, including the stove and the furnace. However, she testified that she did not open up and look at the contents or components of the furnace because she had no idea how a furnace worked. She testified that her mother told her that other tenants were complaining about the smell of gas and that “some of them were irritated about the fact that it hadn’t been resolved.” She stated that during the three year period that she visited her mother at the apartment, she never called the City of San Antonio about looking into the problem, nor did she call CPS to have them try and detect where the leaks were. She [884]*884stated that her mother was considering moving out of the apartment because of “a problem with the bathroom that she was upset about.”

Negligence is based on the violation of a duty toward someone. When no duty exists, no legal liability can arise on account of negligence. See Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). The action or omission complained of must be wrongful in that it involves the breach of some duty which the alleged wrongdoer owes to the injured party at the time the injury was inflicted. Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App.— Amarillo 1964, writ ref'd n.r.e.). Whether or not a legal duty exists under a given state of facts is essentially a question of law to be determined by the court. Id.

Texas still follows a general rule that Texans do not owe others general amorphous legal duties. The rule in Texas still distinguishes between moral and legal duties. Although one may have a moral duty to prevent a blind person from crossing a busy street against a light, a person has no legal duty to do so unless additional factors exist. These other factors include the existence of familial or voluntary relationships which impose a duty, statutes or ordinances which may legally require action, or special circumstances, such as having placed the blind man in his precarious position in the first place.

Kilgarlin & Sterba-Boatwright, The Recent Evolution of Duty in Texas, 28 S.TEX.L.REV. 241, 245 (1986).

Thus, one person is under no duty to control the conduct of another, even if he has the practical ability to exercise such control. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983), citing, RESTATEMENT (SECOND) of TORTS § 315 (1965). Relationships that may, as a matter of law, impose certain duties upon parties include the duty of a parent to control the conduct of his child, the duty of a master to control the conduct of a servant, the duty of a possessor of land or chattels to control the conduct of a licensee, the duty of those in charge of a person having dangerous propensities and the duty of a person having custody of another to control the conduct of third persons, none of which are applicable under these facts. See Otis at 309; RESTATEMENT (SECOND) of TORTS §§ 316-20 (1965). One may also voluntarily enter an affirmative course of action affecting the interests of another which would be regarded as assuming a duty to act with reasonable care. Otis at 309. This exception is also inapplicable under these facts.

Texas courts have held that “if a person knows that gas is escaping into his home from the main of a gas company, it is his duty to take suitable precaution for his safety. Gray v. Enserch, Inc., 665 S.W.2d 601, 605 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.) (emphasis added). “[I]t would be his duty to notify the company of the leak.” Id. However, appellees cite no Texas cases, and we have found none, that hold that a third party has a duty to notify the company of a suspected leak purely on behalf of another.

Nevertheless, appellees, citing Jackson v. Associated Developers of Lubbock, 581 S.W.2d 208 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.), and Moody v. City of Galveston, 524 S.W.2d 583 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.), argue that appellant Mae Hancock may be held negligent because “a plaintiff is under a duty to exercise that degree of care for his own safety as a reasonably prudent person would or should exercise under the same or similar circumstances.” (Emphasis added.) This contention is obviously inapplicable here because Mae Hancock’s own safety was not at issue. Appellees further argue that “Mae Hancock owed a legal duty of reasonable care to herself for her own safety and welfare as well as to others,” but cite no authority for this proposition, and our search has revealed none. Appellees also assert that whether “she owed a legal duty to her mother, beyond a moral duty, is irrelevant to the question [885]*885[sic] whether she was contributorily negligent.” We disagree, for it is clear that negligence is based on a violation of a duty. See Abalos, 544 S.W.2d at 631.

The cases relied on by appellees are easily distinguishable.

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Hancock v. City of San Antonio, 800 S.W.2d 881, 1990 WL 255552 (Tex. Ct. App. 1990).

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