Thursday, August 4, 2011

Negligence 101: Was the Defendant under a legal duty?


What does it take to establish liability for negligence?

To prevail on a negligence cause of action, a plaintiff must prove (1) the existence of a legal duty, (2) breach of the duty, and (3) injury proximately caused by the defendant’s breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991). Whether a duty exists is a question of law for the court to decide based on the facts surrounding the occurrence in question. Id.

Duty concerns not subjecting others to an unreasonable, foreseeable risk of harm. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 39 (Tex. 2002); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex. 1984) (discussing unreasonable risk of harm as component of duty analysis); see also Keck, Mahin & Cate v. Nat. Union Fire Ins. Co., 20 S.W.3d 692, 702 (Tex. 2000) (noting contributory negligence is that which creates an unreasonable risk of harm to oneself). “As Dean Prosser has observed . . . [‘n]o better general statement can be made, than the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.’” Otis Eng’g Corp., 668 S.W.2d at 310. (quoting W. Prosser, The Law of Torts § 56 (4th ed. 1971)). A reviewing court balances several related factors to determine whether a defendant owed a plaintiff a duty, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Phillips,

SOURCE: Corpus Christi Court of Appeals - 13-10-00355-CV - 7/28/11

We conclude there is no evidence Fins Grill owed a duty to Tunchez in the normal opening of the door and there is no evidence Fins Grill, acting through its employee, Williams, breached any duty toward Tunchez. The trial court properly granted Tunchez’s no-evidence motion for summary judgment. Our holding today is consistent with cases from other jurisdictions that have declined to impose liability for normal opening of a door. Compare Quinones v. J.C. Penney Corp., Inc., No. 07-CV-00370, 2008 WL 4371972, at *7 (D. Conn. Sept. 24, 2008) (holding a reasonable person is not required to give notice prior to opening door of public restroom in a normal manner); Richard v. McCrory Corp., 666 So.2d 371, 374–75 (La. App. 1 Cir. 1995) (holding injury to child hiding near door was unforeseeable and therefore no negligence duty) with Gallardo v. New Orleans Steamboat Co., 459 So.2d 1215, 1218 (La. App. 3 Cir. 1984) (affirming negligence judgment against common carrier whose employee came through doors “like a bat out of hell”); McDermott v. Sallaway, 85 N.E. 422, 423–24 (Mass. 1908) (finding evidence of negligence when employee knew of plaintiff’s presence and opened refrigerator door with such force that plaintiff was thrown forward multiple steps). We overrule Tunchez’s first and third issues on appeal. In light of our disposition of these issues, we do not reach Tunchez’s second issue, which concerns the propriety of granting a traditional summary judgment in favor of Fins Grill. See Tex. R. App. P. 47.1; Ford Motor Co., 135 S.W.3d at 600.

SOURCE: Corpus Christi Court of Appeals - 13-10-00355-CV - 7/28/11

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