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Flanagan v. RBD San Antonio L.P.

Court of Appeals of Texas, Fourth District, San Antonio

November 22, 2017

Jana Lee FLANAGAN and Lucas Matthew Flanagan, Appellants
v.
RBD SAN ANTONIO L.P., Davidson Hotel Company LLC and G4S Secure Solutions (USA) Inc., Appellees

         From 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

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         Jana 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.

         Background

         Between 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 truck.

         Jana 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.

         Andres 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 him.[1]

         Charles 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.[2]

         Robert 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 scene.

         Police 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 offense.

         The 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.

         Standard of Review

         "We 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.

         Premises Liability Claim Based on Parked Truck

         In 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 aggravated assault.

         The 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.

         Criminal Act

         With 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 the scene.

         A 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 2011).

         As 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 ...


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