Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court Nos. 2012-CI-20044 & 2016-CI-18601 Honorable David
A. Canales, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini,
Justice, Patricia O. Alvarez, Justice
Bryan Marion, Chief Justice
Lee and Lucas Matthew Flanagan appeal traditional and
no-evidence summary judgments granted in favor of RBD San
Antonio L.P., Davidson Hotel Company LLC, and G4S Secure
Solutions (USA) Inc. in a premises liability case based on an
alleged aggravated assault at a hotel. The Flanagans contend
the trial court erred in granting the summary judgments and
in sustaining objections to their summary judgment evidence.
We affirm the trial court's orders.
4:30 a.m. and 5:00 a.m. on November 29, 2012, Jason Salmon
was parked in a truck in the loading and unloading area of an
airport hotel. Salmon's truck was observed by hotel
employees and hotel security, but no one approached the
Lee Flanagan, a flight attendant for an airline, began
loading her suitcases into an airport shuttle van around 5:00
a.m. As she loaded her suitcases, Salmon struck Jana with his
truck, trapping her between the truck and the van. Salmon
continued to press on the accelerator pedal for twenty to
thirty additional seconds before hotel security opened the
truck door and placed the truck in park.
Doctor, a hotel employee who serves as a bellman and a
shuttle driver, testified in his deposition Salmon appeared
to be under the influence of something and his eyes looked
glassy. Although Doctor did not smell any alcohol, he
believed Salmon was not in the right frame of mind. After
Salmon's truck was placed in park, Salmon appeared to be
attempting to leave the scene, so Doctor restrained
Funderbunk, another hotel employee, went outside after
hearing the commotion and saw Doctor restraining Salmon.
Funderbunk briefly spoke to Salmon who told him he was
dropping off a lady. Funderbunk also believed Salmon appeared
to be impaired by alcohol or drugs based on his manner of
speech, his glassy eyes, and his fidgeting. Funderbunk did
not smell any alcohol on Salmon's breath.
Luis Diaz, a security company employee, testified he believed
Salmon was under the influence because another security guard
reported Salmon was slurring his words and tried to leave the
officers arrived in response to a 911 call and questioned
Salmon. Salmon stated he was picking someone up from the
hotel, and his foot must have slipped. Salmon could not,
however, provide the person's name. In his subsequent
deposition, Salmon stated he was dropping someone off at the
hotel, but again could not provide the person's name. The
police officers conducted field sobriety tests and determined
Salmon was not intoxicated. The officers allowed Salmon to
leave the scene, and Salmon was never charged with a criminal
Flanagans subsequently sued Salmon, the owners of the truck,
G4S Secure Solutions (USA) Inc. (the "Security
Company"), which was the hotel's security company,
and RBD San Antonio L.P. and Davidson Hotel Company LLC
(collectively the "Hotel"), the hotel's owners.
After the Flanagans settled their claims against the owners
of the truck, the trial court granted traditional and no
evidence summary judgments in favor of the Hotel and the
Security Company and severed the Flanagans' claims
against them, making the judgments final for purposes of
appeal. The Flanagans appeal.
review the grant of [a] summary judgment de novo."
Katy Venture, Ltd. v. Cremona Bistro Corp., 469
S.W.3d 160, 163 (Tex. 2015). To prevail on a traditional
motion for summary judgment, the movant must show "there
is no genuine issue as to any material fact and the [movant]
is entitled to judgment as a matter of law."
Tex.R.Civ.P. 166a(c). A trial court must grant a no-evidence
motion for summary judgment unless the nonmovant raises a
genuine issue of material fact on each challenged element of
the nonmovant's claims. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). We take as true
all evidence favorable to the nonmovant, resolve all
conflicts in the evidence in the nonmovant's favor, and
indulge every reasonable inference and resolve any doubts in
the nonmovant's favor. Katy Venture, Ltd., 469
S.W.3d at 163.
Liability Claim Based on Parked Truck
their pleadings, the Flanagans alleged two premises liability
theories. One theory was based on the parked truck being a
premises defect. The other theory was based on Salmon's
actions being a foreseeable criminal act, namely an alleged
Hotel and the Security Company both assert the Flanagans
waived any complaint regarding their first theory because
they do not challenge the summary judgment as to that claim.
The Flanagans do not appear to disagree that they waived any
complaint as to the first theory, but they assert their
failure to challenge the first theory does not waive their
complaint as to the second theory. We agree the
Flanagans' challenge to the second theory is not waived
by their failure to challenge the first theory. See
Flutobo, Inc. v. Holloway, 419 S.W.3d 622, 638 (Tex.
App.- Houston [1st Dist.] 2013, pet. denied) (addressing
theory of liability the appellants briefed and holding
theories of liability that were not briefed were waived).
Therefore, we only address whether summary judgment was
proper on the Flanagans' second theory.
regard to the Flanagans' allegation that Salmon's
actions were a foreseeable criminal act, namely an alleged
aggravated assault, the Hotel and Security Company initially
challenge whether Salmon even engaged in a criminal act. The
Hotel and the Security Company point to the evidence that
Salmon passed the field sobriety tests and was never charged
with a criminal offense. In addition, the Hotel and the
Security Company cite to Salmon's testimony that his foot
slipped. The Flanagans rely on the testimony regarding
Salmon's appearance at the scene and his attempt to leave
person commits the offense of assault if he intentionally,
knowingly, or recklessly causes bodily injury to another
person. Tex. Penal Code Ann. § 22.01 (West Supp. 2016).
A person commits the offense of aggravated assault if he
commits assault and causes serious bodily injury to the other
person or uses or exhibits a deadly weapon during the
commission of the assault. Id. at § 22.02 (West
previously noted, the evidence included witness testimony
that Salmon continued to accelerate for twenty to thirty
additional seconds after he pinned Jana between his truck and
the hotel van. The evidence also included witness testimony
that Salmon appeared to be impaired and that he attempted to
leave the scene. Viewing this evidence in the light most
favorable to the Flanagans and drawing all reasonable
inferences in their favor, we hold the evidence raises a
genuine issue of material fact with regard to whether Salmon
engaged in a ...