Vasquez v. Legend Natural Gas III, LP

492 S.W.3d 448, 2016 WL 1729390, 2016 Tex. App. LEXIS 4480

• Court: Court of Appeals of Texas
• Decided: April 29, 2016
• Docket: No. 04-14-00899-CV
• Status: Published

Opinions

OPINION

Opinion by:

Patricia 0. Alvarez, Justice

This ease stems from Appellant Laura Vasquez’s² wrongful death and survival causes of action filed against Appellees Legend Natural Gas III, LP; Legend Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties, Ine.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex Operating Company, Inc.; Enterprise Products Holdings, LLC; Enterprise Products Company; and XTO Energy, Inc.³ The trial court dismissed ■Laura’s cause of action pursuant-to Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P, 91a.

Appellant’s sole issue on appeal is whether “[Appellees had] a legal duty to act to prevent [José] Vasquez’s death from the dangerous situation on Krueger Road that [Appellees] themselves created.” Because Laura’s pleadings failed to show a basis in law that Appellees maintained a duty (1) to repair Krueger Road or (2) to warn of a dangerous condition on Krueger Road, the trial court’s dismissal is affirmed.

Factual and Procedural Background

On August 4, 2012, while driving on Krueger Road, in La Salle County, Texas, José Vasquez died as a result of a one-vehicle rollover accident. Laura Vasquez, José Vasquez’s widow, subsequently’ sued ten entities, jointly the Appellees, who own or operate oil and gas wells in the area around Krueger Road. Laura contended Appellees created a dangerous condition by their drivers’ continuous travel on “Krueger Road at a high rate of speed, [operating]- heavy and maybe overweight vehicles on Krueger Road, and [operating] vehicles that [Appellees] knew Krueger Road could not handle.”

Appellees Legend Natural Gas III, L.P., Legend National Gas, LLC, Lewis Energy Group, LP, and Lewis Petro Properties, Inc. filed■ motions to-dismiss pursuant to Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P. 91a. The Rule 91a motion asserted Laura’s petition had no basis in law because the Appellees owed no legal duty to José.. See" Tex.R. Civ. P. 91a.l; 91a.2. Appellees also urged Laura’s petition alleged no basis in fact because “no reasonable person [would] believe the facts pled” establish causation. Id. R. 91a. 1.

On October 2, 2014, Laura filed her First Amended Petition asserting multiple theories of .negligence: (1) Appellees’ negligent and non-negligent use and operation of their vehicles on Krueger Road; (2) Appellees’ negligent and non-negligent operation of their businesses; and (3) Appel-lees’ gross negligence. Under the negligence theories, Laura contended Appellees created a dangerous condition for all drivers bn Krueger Road.

All parties appeared for a contested hearing on October 16, 2014. At the close of the hearing, the trial court orally granted Appellees Legend Natural Gas III, L.P., Legend National Gas, LLC, Lewis Energy Group, LP, and Lewis Petro Properties, Inc. motions to dismiss pursuant to Texas Rule of Civil Procedure 91a.

The motion to dismiss and final judgment entered on January 5, 2015, provided as follows:

It is therefore ORDERED that Defendants’ Legend Natural Gas III, LP and Legend Natural Gas, LLC, Motion to Dismiss and Defendants’ Lewis Energy Group, LP, and Lewis Petro Properties, Inc., Partial Motion to Dismiss are hereby GRANTED pursuant to Texas Rule of Civil Procedure 91a on the grounds Plaintiffs Cause of Action against these Defendants has no basis in law. It is further ORDERED that all of Plaintiffs’ claims against all remaining Defendants: Rosetta Resources Operating LP, Virtex Holdings, LLP, Virtex Operation Company, Inc., Enterprise Products Holdings LLC, Enterprise Products Company, and XTO Energy Inc., are also DISMISSED pursuant to Texas Rule of Civil Procedure 91a, on the grounds Plaintiffs Cause of Action has no basis in law.

Laura’s sole issue on appeal is whether “[Appellees had] a legal duty to act to prevent [José] Vasquez’s death from the dangerous situation on Krueger Road that [Appellees] themselves negligently created.” Accordingly, we limit our review to this question.

Texas Rule op Civil Procedure 91a

Rule 91a provides that a party may move to dismiss a cause of action on the ground that it has ho basis in law or fact. Id. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Id. Evidence is not considered when a trial court rules on a Rule 91a motion. Id. R. 91a.6. To the contrary, a trial court looks only to “the pleading of the cause of action, together with any pleading exhibits.” See Tex.R. Civ. P. 91a.6 (“[T]he court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.”).

The trial court further construes the pleadings liberally in favor of the plaintiff, looks to the pleader’s intent, -and accepts the plaintiff’s factual allegations as true; and, if needed, draws reasonable inferences from the factual allegations to determine if the cause of action has a basis in law or fact. See Tex. R. Civ. P. 91a. 1; Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183-84 (Tex.App.-Houston [14th Dist.] 2015, pet. denied); Wooley v. Schaffer, 447 S.W.3d 71, 74-75 (Tex.App.-Houston [14th Dist.] 2014, pet. denied); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.App.-Beaumont 2014, pet. denied)'. We remain cognizant that “ ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclu-sory statements, do not suffice.’ ” GoDaddy.com, 429 S.W.3d at 754 (alterations in original) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In the case at bar, although we take all of Laura’s factual allegations. as true, we need not afford the same deference to plaintiff s legal conclusions or con-clusory statements. See GoDaddy.com, 429 S.W.3d at 754; Kidd v. Cascos, No. 03-14-00805-CV, 2015 WL 9436655, at *2 (Tex.App.-Austin Dec. 22, 2015, no pet.) (mem.op.) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct: 1955, 167 L.Ed.2d 929 (2007)); see also City of Austin v. Liberty Mute Ins., 431 S.W.3d 817, 826 (Tex.App.-Austin 2014, no pet.).

A. Standard of Review

An appellate court reviews a trial court’s ruling on a motion to dismiss de novo. See Wooley, 447 S.W.3d at 76; Allen Keller Co. v. Foreman, 343 S.W.3d 420, 425 (Tex.2011) (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.2010)). Moreover, “[d]eterminations of whether a cause of action has any basis in law and in fact are both legal questions which we review de novo, based on the allegations of the live petition and any attachments thereto.” Wooley, 447 S.W.3d at 76; see also GoDaddy.com, 429 S.W.3d at 754.

B. Factual Allegations

Rule 91a mandates this court take all of Laura’s factual allegations set forth in her First Amended Petition as true. See Tex. R. Civ. P. 91a. Laura’s petition focuses on the condition of Krueger Road,' a public road located in La Salle County. Laura .alleges Krueger Road was , once a safe, paved road that became dilapidated and dangerous.

The assertions contained within Laura’s First Amended Petition are set forth below:

(i) ■ [I]t takes almost 1200 trucks to bring one oil or gas well into production;

(ii) [0]ver 350 trucks are required per yéar for maintenance of an oil or gas well;

(iii) [T]he service life of roads in areas around oil or gas wells is reduced more than 30 percent per year due ' to natural gas well operations;

(iv) [Appellees knew] La Salle County could not repair Krueger Road as fast as [Appellees] destroyed it;

(v) [Appellees’] drivers continuously [drove] down Krueger Road at. a high rate of speed;

(vi) [Appellees’] operate[d] heavy and maybe overweight vehicles on • Krueger Road;

(vii) Krueger Road was once a safe, paved road for the public;

(viii) Now, Krueger Road is a dangerous, dirt road with potholes, bumps, [and] crevices;

(ix) [Appellees] knew they created a dangerous condition on Krueger . Road;

(x) [Appellees] failed to fix the road, . failed to attempt to prevent injuries, and failed to provide any warnings ■ to drivers on Krueger Road, such as José Vasquez.

Based on Laura’s factual allegations, we take as. true that Appellees’ continuous and allegedly negligent.acts created a dangerous condition on the roadway in question (i.e., a dilapidated road). See Allen Keller Co., 343 S.W.3d at 425.

Laura asserts that her pleadings sufficiently alleged that Appellees owéd a legal duty to act. We thus turn to whether Laura’s pleadings sufficiently show a basis in law that Appellees owed a legal duty to José. See Wooley, 447 S.W.3d at 76; see also D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987) (concluding a negligence cause of action requires proof of “[1] a legal duty owed by one person to another, [2] a breach of that duty, and [3] damages proximately caused by the breach.”).

C. Negligence

A negligence cause of action necessarily requires a plaintiff establish the defendant had a legal duty and violated that duty. Villegas, v. Tex. Dep’t of Transp., 120 S.W.3d 26, 39 (Tex.App.-San Antonio 2003, pet. denied); see also DeGrate v. Exec. Imprints, Inc., 261 S.W.3d 402, 409 (Tex.App.-Tyler 2008, no pet.) (citing Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993)). Duty is a legal “obligation to conform to a particular standard of conduct.” Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 (Tex.App.-Dallas 1993, writ denied). If no duty exists, a defendant cannot be held liable for negligence. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006) (per curiam).

The present case turns on the issue of whether Appellees owed a duty to José to repair Krueger Road or to warn of a dangerous condition on Krueger Road. See Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942) (explaining negligence is “the doing of that which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do that which an ordinarily prudent person would have done under the same or similar-circumstances”). Laura’s negligence claim, thus, requires proof that Appellees owed “a legal duty” to José. See D. Houston, Inc., 92 S.W.3d at 454.

D. Arguments of the Parties

Laura argues her First Amended Petition factually supports her causes of action for negligence against the. Appellees for creating a dangerous condition. She contends the trial court erred in its implicit finding that Appellees had no legal duty to her husband. Laura infers that because La Salle County “could not repair Krueger Road as fast as [Appellees] destroyed it,” Appellees’ negligent use of the road gave rise to their, duty to repair Krueger Road or to warn drivers of its danger. She alleges that on the day of José’s accident, Appellees’ failure to .fix Krueger Road, or provide warnings of the dangerous condition on Krueger Road, resulted in the creation of a dust cloud when a Lewis Energy vehicle traveled negligently on Krueger Road in front of José.⁴ The dust cloud, in turn, caused José to drive off of the road, into a ditch, and ultimately flip his vehicle. Laura alleges that José was killed as a result.

Appellees assert, inter alia, that they have no duty to repair a public road or to warn of the condition of the public roadway where such condition was-the result of wear and tear and that such duty to repair or warn was La- Salle County’s sole responsibility. Appellees also argue they do not own or control the public road and, thus, do not have any property interest that would provide a legal- right to place signs or devices on it.

E. Duty Owed by Private Entities in Relation to a Dangerous Condition on a Roadway

Because liability cannot be imposed in the absence of duty, whether Appellees owed José a duty is a threshold inquiry. See id. The trial court implicitly found that Appellees owed no legal duty to José when it dismissed Laura’s claims under Rule 91a. Tex. R. Civ. P. 91a. We, therefore, look to whether Laura’s pleadings established a duty on behalf of Appellees, being mindful that Laura’s factual allegations, and the reasonable inferences therefrom, must be taken as true. See Wooley, 447 S.W.3d at 75.

The dispositive question is whether Ap-pellees owed a duty to either (1) repair Krueger Road or (2) warn of any danger created by a dangerous condition on Krueger Road. We address each separately.

1. Duty to Repair Roadway Damaged by Negligently Created Dangerous Condition

The petition alleged the following dangerous condition:

Every day, [Appellees] sent, and still send, numerous loaded and unloaded trucks up and down Krueger Road to operate and service the wells. [Appel-lees], knowing La Salle County could not repair Krueger Road as fast as [Appel-lees] destroyed it, created a dangerous condition for all drivers on Krueger Road, including Jose Vasquez.

The parties agree that La Salle County’s county commissioners possess general control over public roads, specifically Krueger Road, located within the county. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28, 31-32 (Tex.2003) (citing Tex. Loc. Gov’t Code Ann. § 8L028(5) recodified in Tex. TRANSP. Code Ann. § 251.016 (West 2015) (explaining roadways are the State’s responsibility and the State bears the duty - to -make them safe)); see also Robbins v. Limestone Cty., 114 Tex. 345, 268 S.W. 915, 918 (1925) (“The Legislature then has the sole and exclusive power pertaining to public roads and highways, unless and only to the extent that power may be, if at all, modified or limited by other plain provisions of the Constitution”). “By granting commissioners general control over the roads, the Legislature imposed on them a duty to make roadways safe for public travel.” City of Boerne, 111 S.W.3d at 31-32; Tex. Transp. Code Ann. § 252.005(a) (West 2013) (county has the duty to repair public roads under its control).

Both parties point to Grapotte v. Adams, 130 Tex. 587, 111 S.W.2d 690 (1938), for support. In Grapotte, the plaintiff tripped and fell while walking on a public sidewalk in downtown San Antonio. Id. at 691. The plaintiff filed suit contending “that as a result of numerous vehicles [owned by the defendant] passing daily over the sidewalk, ... [the] sidewalk had become worn so that a hole or depression existed therein where the wheels of the vehicles passed.” Id. The plaintiff further alleged that “while walking on the sidewalk at night, [she] stepped into such hole or depression and fell, thereby sustaining severe bodily injuries; and that the defendant knew, or ought to have known, the defective condition of the sidewalk.” Id. The Texas Supreme Court concluded that the duty to maintain the sidewalk rested upon the City of San Antonio, rather than the abutting landowner-defendant. Id. at 691. Contrary to Grapotte’s contentions that the depression in the sidewalk was an erroneous use by the defendant, the court concluded that thé numerous cars passing over the sidewalk “simply show[ed] the degree or quantity of use.” Id, at 691-92.

The present case strongly resembles the facts set out in Grapotte. Like the defendant’s vehicles driving over a public sidewalk' in Grapotte, the Appellees’ employees drove then- work-related vehicles on a public road. Id. at 691-92. As in Grapotte, the subsequent degradation of that road over time, by itself, does not give rise to a duty, even if the road becomes dangerous for other users, regardless of the number of vehicles driven on the road. See id. Here,- the roadway in question was a public roadway used by the public, including-Ap-pellees-and José. Yet,-as Grapotte explains, absent an exception, the duty to repair a public road remains with the governmental entity in control of that road. Id.

Based on Laura’s allegations, we take as true the allegation that Appellees’ work-related. vehicles were - “heavy and maybe overweight’ and Appellee’s drivers traveled at a high rate of speed on Krueger Road. We also take as true that Appellees’ acts ultimately damaged the roadway; and, it was the condition of the roadway that caused the cloud, of dust resulting in José’s accident and subsequent death. Laura’s petition; however, failed to allege how the Legislature’s “granting commissioners courts general, control over the roads,” imposed on Appellees “a duty to make the roadways safe for public,travel.” City of Boerne, 111 S.W.3d at 31-32;. see also Grapotte, 111 S.W.2d at 691-92.

Absent an allegation that La Salle County delegated its maintenance and repair functions to Appellees, or that Appellees gratuitously assumed those functions, Laura’s pleadings do not support the exisfenee of a legal duty, owed by Appellees, to maintain and repair Krueger Road. See Guerra v. Rodriguez, 239 S.W.2d- 915, 917 (Tex.Civ.App.-San Antonio 1951, no writ) (recognizing that county commissioners may delegate road repair functions); see also Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex.1991) ([O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”) (citing Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922)). To hold Appellees owed a duty to José, simply because La Salle County did not repair Krueger Road fast enough, would create a duty that does not exist. See Villegas, 120 S.W.3d at 39. Although we are obligated under Rule 91a to take Laura’s factual allegations as true, we nevertheless conclude that- Laura’s pleadings fail to show a basis in law that Appellees owed a duty to José, or any other individual on the roadway, to repair Krueger Road.

Having found Appellees owed no legal duty to repair Krueger Road, we next turn to whether Appellees had a duty to warn José regarding a potentially dangerous condition on Krueger Road.

2. Duty to Warn of a Dangerous Condition

In Buchanan v. Rose, 159 S.W.2d at 109, the Texas Supreme Court addressed whether a driver traveling over a bridge that “ha[d] broken down under the weight of his vehicle, without negligence on his part,” had a duty to warn, other drivers in an attempt to prevent other drivers’ injuries. The court’s analysis was based on the concession.that the defendant was not negligent in the damage caused to the bridge. Id.

Laura correctly points to Buchanan for the general proposition that when someone acts without negligence and creates a dangerous situation, that person must give warning of the danger, Id. at 109-10. We note, however, the Buchanan Court was careful to limit the applicability of its opinion. Id. “There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty.” Id. The court then pointed out there is a difference between a legal duty and a moral duty to act; Id. That distinction is even more relevant in the case before us today.

The Buchanan Court examined when ah individual “by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way.” Id. In doing so, the court provided examples — each of which was a specific act performed by a defendant, i.e. the rear wheels crushed the bridge, an excavation of a street or sidewalk, or obstruction on the roadway with a vehicle or other foreign object. Id. The court opined that the roadway in question was “insufficient in strength to carry a normal load. It merely gave way as the result of the usual and legitimate use of the.road.” Id.'The Buchanan Court acknowledged there may be a moral duty to act, but there was no such duty under the law.

Appellees’ actions are no different. As the Texas Supreme Court explained in Jezek v. City of Midland, 605 S.W.2d 544, 548 (Tex.1980), “[tjhere can be no more ‘normal use’ of a roadway than to be driven upon by a motor vehicle.” Even taking all of Laura’s factual allegations as true, Appellees’ employees were driving work-related vehicles on a roadway designed for vehicular traffic. Because there is no allegation the roadway was only intended for a specific group, for example, passenger vehicles, we infer from the pleadings that Krueger Road was designed for all forms of traffic, including Appellees’ work-related vehicles and José’s vehicle. Like the court in Grapotte, the Buchanan Court concluded that the defendant’s action of driving over the bridge that “brok[e] down under the weight of his vehicle” was in the “usual and normal use” of the bridge. Buchanan, 159 S.W.2d at 109.

Accordingly, for the same reasons the defendant in Buchanan was under no legal “duty to give warning of the defect of the bridge,” and the Grapotte defendant was under no legal duty to repair the sidewalk damaged by his employees’ continuous traffic over the sidewalk, Appellees were under no legal duty to provide, notice of any dangerous condition on Krueger Road. Id. at 109-10; see also Grapotte, 111 S.W.2d at 691-92 (explaining that the fact that multiple cars passed over the sidewalk “shows the degree or quantity of use — not an unusual use in a legal sense, .and not a wrongful or an unlawful use”); Allen Keller Co., 343 S.W.3d at 426 (explaining that even assuming Keller’s work created the dangerous condition, Keller did not own the property and therefore did not have a duty to warn); H. Neff Burton, Torts-Negligence-Duty to Take Affirmative Action, 20 Tex. L.Rev. 772, 773 (1942) (“The decision, therefore,. must rest upon the ground that utility of the road requires that the normal and legitimate user be excused from liability for defects resulting from ordinary wear and tear, however dangerous they may be”). ■

Because' Laura’s pleadings failed to show a basis in law that Appellees owed a legal duty to warn José of a dangerous condition on Krueger Road, the trial court did not err in dismissing Laura’s cause of action pursuant to Rule 91a. See Tex. R. Civ. P. 91a.

Conclusion

Having concluded Appellees did not owe José Vasquez a legal duty to repair Krueger Road or to warn of a dangerous condition on Krueger Road, we affirm the trial court’s order dismissing Appellant Laura Vasquez’s claims against Appellees Legend Natural Gas III, LP, Legend Natural Gas, LLC, Lewis Energy Group, LP, Lewis Petro Properties, Inc., Rosetta Resources Operating, LP, Virtex Holdings, LLP, Vir-tex Operating Company, Inc., Enterprise Products Holdings, LLC, Enterprise Products Company, and XTO Energy, Inc.

Concurring Opinion by: Luz Elena D. Chapa, Justice

Dissenting Opinion by: Rebeca C. Martinez, Justice

2 . To assist in clarification of the incidents involving José Vasquez and Appellant Laura Vasquez’s claims on appeal, we refer to each individual by their first name throughout this appeal.

3 .Unless otherwise specified, the term “Appel-lees” is used throughout this opinion to jointly identity Legend Natural Gas III, LP; Legend Natural Gas, LLC; Lewis Energy Group, LP; Lewis Petro Properties, Inc.; Rosetta Resources Operating, LP; Virtex Holdings, LLP; Virtex Operating Company, Inc.; Enterprise Products Holdings, LLC; Enterprise Products Company; and XTO Energy, Inc.

4 . The cause of action against Lewis Energy, for the alleged negligent driving of one of its trucks on the dirt road, causing a cloud of dust that blinded Vasquez, was severed from the main cause of action and is not part of this appeal.