Hartsfield v. McRee Ford, Inc.

893 S.W.2d 148, 1995 WL 19575

• Court: Court of Appeals of Texas
• Decided: March 9, 1995
• Docket: 01-93-01164-CV
• Status: Published

Opinions

OPINION

ANDELL, Justice.

This is an appeal from a take-nothing summary judgment rendered in favor of appellee, McRee Ford, Inc., in a wrongful death and survival action² for the loss of the Harts-fields’ 19-year-old daughter. In a sole point of error, the Hartsfields contend that McRee Ford failed to prove that there were no genuine issues of material fact. We affirm.

I. FACTS AND PROCEDURAL POSTURE

In February of 1991, the Hartsfields’ daughter, Shawn Michelle Hartsfield, sustained injures from a motor vehicle collision on Almeda Road, resulting in her death shortly thereafter. The car that struck decedent had been stolen the previous day from McRee Ford’s used ear sales lot in Dickinson.

The Hartsfields sued McRee Ford, claiming that McRee Ford was negligent and grossly negligent in its manner of preventing the theft of vehicles on its sales lot. The trial court granted McRee Ford’s motion for summary judgment, without specifying the grounds upon which it relied.

II. STANDARD OF REVIEW

Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548 (Tex.1985); Tex.R.Civ.P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

A summary judgment may be affirmed only on grounds stated in the motion. Home Indem. Co. v. Pate, 814 S.W.2d 497, 500 (Tex.App.—Houston [1st Dist.] 1991, writ denied). Where a summary judgment does not state the specific grounds upon which it is granted, it must be affirmed if any one of the grounds asserted in the motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); McCrea v. Cubillo, Condominium Corp., N.V., 685 S.W.2d 755, 757 (Tex. App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.).

III. ANALYSIS

The Hartsfields’ cause of action rests upon the purported negligence or gross negligence of McRee Ford. The elements of a common-law negligence cause of action are: “1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). If a defendant conclusively negates an essential element of a plaintiffs cause of action as a matter of law, summary judgment is proper. Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.—Houston [1st Dist.] 1989, writ denied). Once the defendant has negated an essential element of plaintiffs claim, the plaintiff has the burden to introduce evidence that raises an issue of fact on that element. Id.

Duty to Take Reasonable Precautions

The threshold inquiry in a negligence action is determining whether the defendant owed a duty to the plaintiff. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Existence of a duty is a question of law. Mitchell v. M-K-T R.R., 786 S.W.2d 659, 662 (Tex.1990). Imposition of a duty involves several factors, including “risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the [defendant].” Id. Courts have traditionally considered foreseeability to be the most significant of these factors. Id.

The Hartsfields argue that McRee Ford was under a duty to take reasonable precautions to prevent automobile thefts because stolen cars could result in injuries to others. McRee Ford claims that it has satisfied this duty to take reasonable preventive measures. Furthermore, it argues that its summary judgment evidence has proven this as a matter of law.

Movant’s Summary Judgment Proof

McRee Ford contended in its motion for summary judgment that it was entitled to judgment as a matter of law because it took reasonable security precautions. Hence, it breached no duty to the public at large and, as a matter of law, was not negligent. McRee Ford attached to its motion the affidavit of general manager Mitchell Dale, who stated: “McRee Ford has always taken every possible reasonable precaution to protect our inventory of automobiles from theft.” (Emphasis added.) Following this assertion, Dale outlined the theft-prevention measures McRee Ford had in effect at the time of the theft. These included:

(1) the presence of armed, uniformed off-duty police officers patrolling the premises;

(2) regular surveillance by on-duty local police officers;

(3) the use of locked, parked cars to block the entrances and exits to the sales lots;

(4) the use of lock boxes for each car’s set of keys (with the key to the lock boxes kept in the dealership offices); and

(5) the presence of “a number of people in and around the dealership at the time the automobile in question was stolen....”

Dale’s affidavit also asserted:

In light of the cumulative effect of all of these security measures and the presence of other people on the dealership lot at the time, it was not reasonably foreseeable that an unknown person or persons would steal an automobile from the McRee Ford dealership lot in defiance of our best efforts to prevent them. All of these security measures were, and continue to be, imposed after careful consultation with law enforcement officials and security experts and represent McRee Ford’s best effort at a good faith, reasonable balance between providing enough security to prevent and deter theft while avoiding the appearance of an armed camp which would make customers uncomfortable and deter sales of new and used automobiles.

(Emphasis added.) This summary judgment proof, taken alone, would conclusively negate an essential element of the negligence upon which the Hartsfields’ cause rests, namely, the alleged breach of the duty to take reasonable precautions to prevent auto thefts. Evidence favoring the movant’s position may be considered only if it is uncontroverted. Tex.R.Civ.P. 166a(b).

Response to Motion for Summary Judgment

In their response to the motion for summary judgment, the Hartsfields asserted that McRee Ford’s security precautions were not reasonable in light of the fact that previous criminal acts, including instances of car theft, had occurred on the premises. The Hartsfields claimed that McRee Ford’s security measures were not comparable to “those that are standard in the industry....” They failed, however, to attach any summary judgment proof of industry security standards.³ Nor did they attach any evidence comparing instances of auto theft at McRee Ford and other car dealerships.

The only evidence attached to them response was a collection of police reports, covering a four-and-a-half-year period from early 1987 through late 1991. The Harts-fields attached no controverting affidavit, but argued from the police reports that continuing thefts of automobiles were reasonably foreseeable. They further argued that it was reasonably foreseeable that the misuse of those automobiles could result in ham to others.

However, nothing in the police reports indicates that identical or similar security precautions were in effect at the time of the other instances of auto theft from McRee Ford. The police reports themselves, do not controvert the claim in the Dale affidavit that McRee Ford had taken all reasonable security precautions to prevent theft. The Harts-fields do not contend that McRee Ford had a duty to prevent criminal acts of third parties, but only to take reasonable precautions to that end. The most that the police reports show is that McRee Ford was not always successful in its attempts to prevent theft.

IV. CONCLUSION

The Hartsfields’ summary judgment response did not controvert McRee Ford’s evidence that it had taken reasonable precautions to prevent auto theft. The summary judgment proof showed that McRee Ford’s actions were reasonable; hence, McRee Ford was not negligent toward the Hartsfields, and summary judgment was proper.

We overrule the Hartsfields’ sole point of error and affirm the trial court’s summary judgment.

HUTSON-DUNN, J., files a dissenting opinion.

2 . Tex.Civ.Prac. & Rem Code Ann. §§ 71.002-.004, 71.021 (Vernon 1986).

3 . On appeal, the Hartsfields argue it was unreasonable for McRee Ford not to have a perimeter fence or barrier to prevent auto theft. They failed to produce any summary judgment proof to this effect, however, and this Court may not consider the Hartsfields’ new contention on appeal.