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Henderson v. CC-Parque View, LLC

Court of Appeals of Texas, First District

May 18, 2017

MICHAEL HENDERSON, Appellant
v.
CC-PARQUE VIEW, LLC D/B/A PARQUE VIEW APARTMENTS, ASSET PLUS CORPORATION, ASSET PLUS COMPANIES, LP, ASSET PLUS REALTY CORPORATION, AND ASSET PLUS USA, LLC, Appellees

         On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2015-52958-A

          Panel consists of Justices Keyes, Bland, and Huddle.

          MEMORANDUM OPINION

          Jane Bland Justice.

         An independent-contractor security guard shot Michael Henderson with a rubber bullet during an early morning encounter in the parking lot of Henderson's apartment complex. Henderson sued his landlord, Parque View Apartments, its management companies, and Ranger Guard and Investigations, the security company that had contracted to provide security services at Parque View. Henderson claims that Parque View and its management ("Parque View") breached (1) a duty of care in hiring and retaining the Ranger Guard that shot him and (2) a duty to notify apartment residents that security would be patrolling the property.

         Parque View moved for summary judgment on traditional grounds, contending that: (1) Ranger Guard was an independent contractor over which it exercised no control, and thus Parque View owed no duty to Henderson with respect to Ranger Guard's activities; and (2) Parque View had no duty to warn Henderson of the presence of armed security at the complex. The trial court granted Parque View's motion. The trial court severed the summary judgment from the remaining claims against Ranger Guard and Henderson appeals, challenging the propriety of the summary judgment on both grounds. We affirm.

         Background

         Parque View is a 352-unit apartment complex located in Harris County near the Texas Medical Center. Responding to reports of increased criminal activity in the area, Parque View contracted with Ranger Guard to provide private security services for the apartment complex. The contract between Parque View and Ranger Guard declares that "Ranger Guard and Investigations is an independent contractor of [Parque View]." Ranger Guard warrants that its services "shall be performed by personnel possessing competency consistent with applicable industry standards, " who are required to be licensed and pass screening for sex offender status, criminal history, and drug use.

         The contract further provides that Parque View "may, with the approval of Ranger Guard . . . issue written directions within the general scope of Security Services to be ordered. Such changes . . . may be for additional work or Ranger Guard . . . may be directed to change the direction of work covered by the Task Order, consistent with all applicable laws, but no change will be allowed unless agreed to by Ranger Guard . . . in writing." The record contains no allegation or evidence of any change made pursuant to this provision.

         Ranger Guard assigned Dameon Roberson, who had been working for Ranger Guard since 2011, to provide the security services at Parque View. Roberson is a state-commissioned security officer. Roberson provided Ranger Guard with daily shift reports and lengthier incident reports when necessary to keep Ranger Guard informed of specific encounters that went beyond routine surveillance activities. He also provided copies of these reports to Parque View. For the several weeks preceding the September 2013 incident involving Henderson, Roberson reported:

• An occasion in which he "presented himself with arms" to the driver of a truck who was aggressively attempting to enter through an exit gate that was triggered open by a resident who was attempting to leave.
• An early-morning encounter with a resident that occurred when Roberson responded to a siren sounding in the parking lot. The resident refused to identify himself to Roberson and yelled and cursed at Roberson. Roberson approached the tenant with a telescopic baton in hand, and the resident retreated up the stairs and into his apartment. Roberson notified local police of the incident.
• An evening incident in which Roberson confronted an individual suspected for manually pulling the motorized exit gate open after having been instructed not to do so. Roberson displayed his stun baton, whereupon the individual left the property, identified as a resident, then was allowed to enter through the pedestrian gate.

         During the same period, a few residents complained to the apartment management office that Roberson spoke rudely or "coarsely" to them. On two occasions, residents who apparently were unaware that security was patrolling the premises contacted local police to report uniformed individuals whom they believed were impersonating officers on the premises. Parque View, which believed it had previously taped notices to the residents' doors concerning the new security arrangements, did so again after these police reports occurred.

         In the early hours of September 12, 2013, Henderson, a complex resident, pulled into the parking lot. Roberson noticed the car sitting in the lot while the driver remained inside. He approached Henderson's car and shined a flashlight into the driver's-side window. Roberson instructed Henderson to get out of the car. Henderson, however, remained in his car. Roberson then aimed a gun at Henderson and insisted that he get out of the car. Henderson got out of the car and entered into a discussion with Roberson. The parties dispute how each behaved during that discussion. At some point, Roberson discharged his gun, shooting Henderson in the ...


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