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Garren v. Cunningham

Court of Appeals of Texas, Fifth District, Dallas

April 13, 2017

SUNNY GARREN, JACOBY SEABOURN, AND CHRISTOPHER JONES, Appellants
v.
RAY ANTHONY CUNNINGHAM AND GREYHOUND LINES, INC., Appellees

         On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-11359

          Before Justices Lang, Fillmore, and Schenck

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         A passenger on a Greyhound bus traveling through Maricopa County, Arizona, attacked the bus driver, seizing the steering wheel and causing the bus to leave the divided interstate highway and enter a median before coming to a stop. Some passengers on the bus, including Sunny Garren, Jacoby Seabourn, and Christopher Jones (collectively "appellants"), were allegedly injured. Appellants filed a lawsuit against Greyhound Lines, Inc. and bus driver Ray Anthony Cunningham (collectively "appellees"), claiming that appellees were negligent and grossly negligent in failing to protect them from the criminal acts of the attacker. The trial court granted summary judgment in favor of appellees. In two issues, appellants argue the trial court erred in granting summary judgment because, as a common carrier, Greyhound owes passengers a heightened duty of care to protect them from violence perpetrated by another passenger, and appellant's summary judgment evidence raised a genuine issue of material fact as to whether Greyhound's heightened duty of care to its passengers was breached. For reasons explained in this opinion, we affirm the trial court's judgment.

         Background

         Appellants' Pleading

         On January 23, 2014, appellants were passengers on a Greyhound bus being driven by Cunningham southbound on Interstate 10. Appellants allege another passenger, Maquel Morris, opened the security gate around Cunningham, jumped onto the dashboard area, and took control of the steering wheel away from Cunningham. Morris's actions caused the bus to leave the divided highway and come to rest in the median between the lanes of traffic and resulted in appellants' physical injuries.

         Appellants claim Cunningham knew Morris was dangerous to other passengers and failed to "throw [Morris] off the bus" in accordance with Greyhound policies, and Cunningham violated the duty he owed them to exercise ordinary care in the operation of the bus by failing to keep a proper lookout and pay attention, protect passengers, and avoid the collision. Appellants further claim Cunningham was negligent per se for violation of section 547.101 of the Texas Transportation Code by failing to protect the passengers and control the speed of the bus.[1] Under the doctrine of respondeat superior, appellants claim Greyhound is vicariously liable for Cunningham's negligence. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (under doctrine of respondeat superior, employer is vicariously liable for negligence of an agent or employee acting within scope of his employment). Appellants also assert Greyhound knew or should have known "to make sure the property was safe from all forms of danger" and had a duty to inspect "the property and make it safe, " and Greyhound's "failure to keep the property safe from all forms of danger" and failure "to implement, promulgate and mandate policies and procedures regarding the safe operation" of the bus constituted negligence and gross negligence that proximately caused their injuries and damages. Appellants plead the activities and conduct of appellees constituted a "joint enterprise" pursuant to an express or implied agreement for the common purpose of, and pecuniary interest in, operation of the bus.

         Motions for Summary Judgment

         Appellees moved for a no-evidence and a traditional summary judgment on appellants' negligence claims on the bases that appellees did not owe appellants a legal duty to protect them from the criminal acts of Morris and there is no more than a scintilla of summary judgment evidence in support of, or the evidence conclusively negates one or more essential elements of, appellants' negligence claims. Appellees sought a traditional summary judgment on appellants' gross negligence claims on the bases that appellants could not recover exemplary damages for the criminal acts of another and there is no evidence of one or both of the statutory elements of that claim. See Tex. Civ. Prac. & Rem. Code Ann. §§ 41.001(11) (West Supp. 2016), 41.003 (West 2015). Greyhound sought a no-evidence summary judgment on appellants' gross negligence claim on the basis there is no more than a scintilla of summary judgment evidence in support of, or the evidence conclusively negates one or more of the essential elements of, a claim of corporate liability for gross negligence.

         In response to the motions for summary judgment, appellants contended they presented some evidence appellees breached their legal duty to appellants and "thus proximately caused" appellants' damages. Appellants acknowledged that generally "a person has no legal duty to protect another from the criminal acts of a third person, " but argued appellees owed a legal duty to them because Morris's criminal activity was a foreseeable danger. Appellants asserted the evidence created a genuine issue of material fact as to whether appellees had actual and direct knowledge that an imminent "occurrence will or could occur." With regard to their gross negligence claims against appellees, appellants responded to appellees' motions for summary judgment by arguing that summary judgment evidence presented a genuine issue of material fact as to whether appellees were aware of the danger posed by Morris and acted with conscious indifference to it.

         Summary Judgment Evidence

         A report concerning the incident at issue, prepared by officers of the Arizona Department of Public Safety, (the Crash Report) contains statements made by Bryanna Moore, Morris's girlfriend, who was traveling with him. Moore stated that before they boarded the Greyhound bus in Los Angeles, California, Morris had been using methamphetamine, had not been himself, had been awake for a couple of days, and was "having problems" and thought someone was trying to kill him. According to Moore, Morris only became paranoid when he used methamphetamine, and Morris had acted the same way two years previously at the same Los Angeles bus station when he was under the influence of methamphetamine.

         Moore stated that while en route, the bus made a stop and Morris exited the bus to smoke a cigarette. At the stop, Morris was "contacted by a Greyhound employee" who noticed Morris's behavior. The Greyhound employee asked Morris if he was okay and stated that if he was not, the employee was not going to allow Morris to re-board the bus. Moore told the Greyhound employee, "I got him, and he is going to be fine." After re-boarding the bus and departing from the stop, Morris began to cry audibly and talk about someone killing him. Moore and Morris fell asleep until the bus made a second stop approximately one hour later, and they went into a store where Morris "stood with a blank stare." A female passenger complained to Cunningham that Morris was talking about someone trying to kill him and was arguing with Moore. Cunningham asked Morris and Moore if they were going to be "okay, " and, if not, they could not re-board the bus. Moore stated she assured the bus driver they were "okay." After re-boarding, Morris fell asleep. She was awakened by a loud noise and saw Morris with his hands on the steering wheel of the bus trying to take control of it.

         The Crash Report contains Cunningham's statement that before the incident, "he had been receiving reports from the other passengers" about Morris "acting strangely." At a stop in Quartzsite, Arizona, Cunningham spoke to Morris, and Morris told Cunningham he would have no problems with him. About an hour later, Morris "kicked open" the door separating the passengers from the driver's compartment, grabbed the steering wheel, and yelled he wanted off the bus.

         Also contained in the Crash Report are statements made by bus passengers following the incident. Gregory Fort indicated he spoke with Morris at the San Bernardino, California, bus station. Morris told Fort he was "having an issue." When Fort put his arm on Morris's shoulder, Morris jerked away and began to cry and shake. Theresa Dehorton was seated in the rear of the bus across from Morris and Moore. Dehorton described Morris's behavior as "bizarre and out of the ordinary, " Morris and Moore were arguing, and Morris told Moore he wanted to get off the bus. Onika Williams, also seated near the rear of the bus, described a man and woman sitting next to her arguing and the woman arguing with another female passenger. Chase Portugal described Morris and Moore as acting "bizarre and distracting" and arguing "on and off during the entire trip." Appellant Jones saw Morris and Moore inside a store at a stop in Blythe, California, and they looked nervous. Appellant Garren stated Cunningham "spoke to some passengers about some distracting behavior, " but she did not see who he was talking to. Susana Ordinola stated she did not observe any unusual behavior on the part of Morris or any other fellow passengers, although she indicated another passenger was complaining to her about Morris.

         An excerpt from a January 23, 2014 Huffington Post article regarding the incident contains Ordinola's statement that she heard other bus passengers complaining to Cunningham about Morris during a stop in Blythe, California, and she then saw Cunningham speak to Morris. Ordinola was then reported to have said that after the bus entered Arizona, Morris suddenly ran toward the driver and screamed, "Everybody's going to die."[2]

         In the Crash Report, Dehorton is reported to have stated Morris moved "like a cheetah up the aisle" to the driver, broke through the door to the driver's compartment, and grabbed the steering wheel. Fort stated Morris pushed open the gate separating the passengers from the driver's compartment, jumped on Cunningham, and screamed he was going to "flip" the bus. After Morris was taken into custody following the incident, he was screaming that people were trying to kill him and he wanted off of the bus because a man with a gun was trying to kill him.[3]

         Cunningham testified in his deposition that before Morris boarded the bus in Los Angeles, he "checked" Morris's behavior and concluded Morris had done nothing wrong. Cunningham stated it is the driver of a Greyhound bus that must determine whether a passenger should be removed from the bus. According to Cunningham, no passenger came to him with a complaint Morris was behaving in a hostile manner. Cunningham did not observe any erratic behavior on the part of Morris until Morris fought Cunningham for control of the steering wheel.

         Alan Smith, director of safety and security for Greyhound, testified in his deposition that a Greyhound bus driver has a responsibility to ensure the safety of bus passengers. If a Greyhound bus driver observes a "hostile situation, " the driver would need to determine how the situation had evolved, how serious it had become, and whether there was any imminent danger or serious safety concern for himself or the passengers. Smith understood Greyhound's "management team" in Los Angeles spoke with Morris prior to the trip and ...


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