Opinion
No. 04-04-00570-CV
Delivered and Filed: June 29, 2005.
Appeal from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. 03-257-a, Honorable Stephen B. Ables, Judge Presiding.
Affirmed in Part and Reversed and Remanded in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's order rendering summary judgment in favor of appellee and assessing attorney's fees against appellant. We conclude the trial court improperly rendered summary judgment on appellant's claims against appellee for maintaining a dangerous condition on its premises and for negligent hiring, supervision, training, and retention. We also hold the trial court did not abuse its discretion in awarding attorney's fees pursuant to the Medical Liability and Insurance Improvement Act ("the MLIIA"). Therefore, we affirm in part and reverse and remand in part.
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, (formerly codified at Tex. Rev. Civ. Stat. Ann. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (hereafter "former article 4590i"). Many of the provisions of the former article 4590i have been re-codified in the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.001-74.507 (Vernon Supp. 2004-2005). However, a medical malpractice suit that was filed before September 1, 2003, such as the present case, "is governed by the law in effect immediately before" the changes in the law that were made by the Legislature. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899. Therefore, all citation references hereinafter are to the former statute.
BACKGROUND
In August 2001, appellant, Margaret Doege ("Doege"), sought treatment at the emergency room of Sid Peterson Memorial Hospital ("the hospital") for back pain. After receiving an anesthetic, the treating physician ordered several diagnostic tests and an ultrasound examination. During the course of the ultrasound examination, Doege was allegedly sexually assaulted by Rudy Montez ("Montez"), the radiology technician who performed the ultrasound. Montez was an employee of Millineum Staffing ("Millineum"). Millineum provided staffing at the hospital. After the assault, Doege sued Montez and Millineum, alleging claims of medical negligence, assault, offensive physical contact, and intentional infliction of emotional distress. In her first amended petition, Doege added the hospital as a defendant, asserting the hospital was liable for medical negligence, for the negligent hiring, supervision, training and retention of Montez, and was vicariously liable for Montez's acts. In her second amended petition, Doege alleged the hospital "failed to provide [her] with the proper medical care and attention, resulting in weeks of agonizing pain until the proper care was provided." In support, Doege provided a list of the hospital's alleged acts and/or omissions, including "depriving Plaintiff of the medical care she sought." In her third amended petition, Doege added a claim against the hospital for maintaining a dangerous condition on the premises.
The hospital filed a motion to dismiss the medical negligence claims, seeking attorney's fees, and arguing Doege failed to file an adequate expert report as required by the MLIIA. Additionally, the hospital filed a motion for summary judgment as to all of Doege's remaining claims. Doege filed a motion for summary judgment and a motion for severance, asserting the hospital failed to refute any of her ostensible agency claims or the direct claims against the hospital for negligent retention and supervision. Doege settled with Montez and Millineum and her claims against these parties were dismissed. A few days before the hearing on the motion to dismiss and the motions for summary judgment, Doege filed a fifth amended petition, deleting her allegations that this was a medical negligence case and that the hospital "failed to provide [her] with the proper medical care and attention." However, she did not delete the list of the hospital's alleged acts or omissions. Doege re-asserted her claims against the hospital for maintaining a dangerous condition on the premises and for negligent hiring, supervision, training, and retention.
At the hearing on the cross-motions for summary judgment and the hospital's motion to dismiss, the hospital requested that its motion for summary judgment apply to Doege's fifth amended petition. Because Doege settled her medical negligence claim with Montez, and her fifth amended petition dropped her allegation that the hospital "failed to provide [her] with the proper medical care and attention," the hospital suggested its motion to dismiss became moot. However, the hospital argued it was entitled to attorney's fees under the MLIIA because it had been charged with defending the medical negligence claim up to the date of the hearing and because Doege's list of the hospital's alleged acts or omissions constituted medical negligence claims. After disputing that these allegations included claims for medical negligence, Doege elected to strike the challenged allegations from the petition. Accordingly, the court signed an order stating "the [plaintiff] voluntarily withdrew all medical negligence claims at said hearing, thereby making defendant's motion to dismiss medical negligence claims moot," and the court awarded the hospital $10,000 for "its reasonable attorney's fees and costs of court incurred herein for defense of medical negligence claims." The court also rendered summary judgment in favor of the hospital on the remaining claims and denied Doege's motion summary judgment.
MLIIA AND ATTORNEY'S FEES
In her first issue, Doege argues the trial court erred in awarding attorney's fees to the hospital because she did not bring a cause of action under the MLIIA. In its motion to dismiss the medical negligence claims, the hospital argued Doege's claims were subject to the MLIIA, and because Doege's expert report was insufficient, it should be awarded attorney's fees pursuant to MLIIA section 13.01(e). At the hearing on the motion to dismiss, Doege did not challenge the hospital's assertion that her expert report was insufficient. Instead, she argued that her claim was not a medical negligence claim, and asserted that she filed the expert report and provided the notice of suit required under the MLIIA because some courts have interpreted premises liability cases against a health care provider as medical negligence claims under the MLIIA.
On appeal, Doege re-asserts that her pleadings did not raise health care liability claims as defined by the MLIIA and, therefore, the trial court abused its discretion in awarding attorney's fees to the hospital. In support, Doege alleges that less than three months after the hospital was named as a defendant, she filed her second amended petition which excluded the prior allegations that the treatment provided by the hospital did not meet the applicable standards of medical care. Doege further argues that because her petition did not allege a cause of action citing the required elements for medical negligence, she should not be penalized by the statute.
The four elements of a medical negligence cause of action are 1) a legally cognizable duty requiring conformity to a particular standard of care; 2) a failure to conform to the required standard; 3) actual injury; and 4) a reasonably close causal connection between the conduct and the alleged harm. Flores v. Ctr. for Spinal Evaluation Rehab., 865 S.W.2d 261, 264 (Tex.App.-Amarillo 1993, no writ).
The MLIIA places strict requirements on a plaintiff bringing a medical negligence claim against health care providers. Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 671 (Tex.App.-Dallas 2001, no pet.). To promote the detection and dismissal of frivolous health care claims early in the litigation process, the MLIIA requires plaintiffs either to file an expert report substantiating their claims within 180 days of filing suit or voluntarily dismiss their action. Id; see also former article 4590i, § 13.01(d). Article 4590i also requires an award of attorney's fees and costs of court "as sanctions" "[i]f a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required." See former article 4590i § 13.01(e); Doades v. Syed, 94 S.W.3d 664, 674 (Tex.App.-San Antonio 2002, no pet.).
Plaintiffs may not avoid the MLIIA by recasting their causes of action as something other than health care liability claims. See MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998) (per curiam); Bush, 39 S.W.3d at 671. However, courts must be equally careful not to extend the MLIIA's reach beyond its stated bounds. Bush, 39 S.W.3d at 671. Not every action taken by a health care provider or every injury suffered by a patient falls within the ambit of the MLIIA. Id. In determining whether the trial court abused its discretion in sanctioning Doege by awarding attorney's fees to the hospital, we must decide whether the court correctly characterized her claims as health care liability claims.
The MLIIA applies only to "health care liability claims," which are defined as claims "against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract." See former art. 4590i, § 1.03(a)(4). A cause of action will be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). The act or omission complained of must be an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995); Drury v. Baptist Memorial Hosp. Sys., 933 S.W.2d 668, 676 (Tex.App.-San Antonio 1996, writ denied). To determine whether a cause of action fits this definition, we look at both the pleadings and the underlying nature of the claim. MacGregor Med. Ass'n, 985 S.W.2d at 40; Sorokolit, 889 S.W.2d at 242. We examine whether the claim involves the diagnosis, care, or treatment of the patient, and whether expert testimony would be required to prove the alleged negligence. Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex.App.-Corpus Christi 1999, no pet.).
In her first through fourth amended petitions, Doege alleged her claims arose "out of the medical and general negligence committed by the defendants, individually and collectively." As to Montez, Doege alleged he breached his duty to provide reasonable care by failing to perform a timely and appropriate assessment and testing of her medical condition and "failing to render health care services in accordance with the applicable standard of care as [a] reasonably prudent radiology technologist would have under the same or similar circumstances." Doege's petition alleged the hospital was vicariously liable for all of Montez's acts. The petition also asserted the hospital "failed to provide [her] with the proper medical care and attention, resulting in weeks of agonizing pain until the proper care was provided." These claims involve the diagnosis, care, and treatment of a patient that would require expert testimony to prove the alleged negligence. See former art. 4590i, § 10.3(a)(4); Rogers, 13 S.W.3d at 419.
Furthermore, after settling with Montez and just prior to the hearing on the motion to dismiss and the motions for summary judgment, Doege filed a fifth amended petition. Although she deleted her allegations that her claims arose "out of the medical and general negligence committed by the defendants, individually and collectively" and that the hospital "failed to provide Ms. Doege with the proper medical care," the petition alleged, in part, that the hospital was negligent for 1) depriving her of the medical care she sought; 2) failing to determine the professional competence of Montez before the execution and renewal of his contracts of employment; 3) failing to provide adequate facilities and equipment to assess and treat her; 4) failing to provide competent hospital administration; and 5) failing to provide qualified, trained and supervised non-physician staff capable of meeting her health care needs. These allegations also involve the diagnosis, care, and treatment of a patient that would require expert testimony to prove the alleged negligence. Although Doege voluntarily elected to remove these allegations at the hearing, the hospital was still charged with defending these claims up to that point in time. Therefore, we cannot say the trial court abused its discretion in awarding the hospital attorney's fees pursuant to the MLIIA.
In her second issue, Doege argues the trial court abused its discretion in awarding $10,000 in attorney's fees. Specifically, Doege asserts that because the hospital refused to segregate the portions of attorney's fees spent defending the medical negligence claims from those spent defending the general negligence claims, there was insufficient evidence that the hospital's attorney's fees were actually incurred or reasonable. Article 4590i requires an award of attorney's fees and costs for failing to comply with section 13.01(d). Doades, 94 S.W.3d at 674. "Statutes providing that a party . . . 'shall be awarded' . . . attorney [sic] fees are not discretionary." Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Although awarding attorney's fees is mandatory in some instances, courts are afforded discretion in determining the amount. Great Global Assurance Co. v. Keltex Properties Inc., 904 S.W.2d 771, 776 (Tex.App.-Corpus Christi 1995, no pet.). But even a mandatory award of attorney's fees must be supported by evidence. Doades, 94 S.W.3d at 674. "[T]o rule . . . without supporting evidence" constitutes an abuse of discretion. Bocquet, 972 S.W.2d at 21.
A party seeking attorney's fees must present evidence of a reasonable fee for only those services necessarily rendered in connection with the claim for which recovery of attorney's fees is authorized, segregated from those services rendered in connection with other claims. Int'l Sec. Life Ins. Co. v. Finck, 496 S.W.2d 544, 546-547 (Tex. 1973). "A recognized exception to this duty to segregate arises when the attorney's fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. " Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). "Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are 'intertwined to the point of being inseparable,' the party suing for attorney's fees may recover the entire amount covering all claims." Id. at 11-12.
At the hearing, the hospital's attorney, M. Scott Stehling, testified that he has been a licensed attorney since 1971, he practices law primarily in Kerr County, and he is familiar with normal standard costs for the type of work he performed on this case. Stehling stated he had worked on the case from 2002 until the date of the hearing in May of 2004 and he bills at a rate of $150 an hour. He further testified he has been paid a total of $20,000 through the date of the hearing. He testified that half of his time was spent defending the medical negligence portion of Doege's petition and the remaining time was spent on the general negligence portion. According to Stehling, $10,000 was a reasonable and necessary fee for defending the hospital in the medical negligence claim and he had the records to substantiate the bills to the hospital. On cross-examination, Doege's attorney asked Stehling if he had provided any billing statements or if he had segregated the fees for the medical and general negligence claims. In response, Stehling stated he did not segregate the billing; however, the fees he had been paid included services for depositions, transmittal of discovery materials, and responding to pleadings. According to Stehling, the work was the same for the entire case and that what he had testified to was reasonable and, therefore, in his opinion, there was no need to segregate the fees. Doege's attorney did not provide any contradicting evidence on the reasonableness of the attorney's fees.
We conclude the hospital was not required to segregate the fees because the medical negligence and general negligence claims are based on the same facts and are interrelated. Therefore, we hold there was sufficient evidence to support the award of attorney's fees. Accordingly, the trial court did not abuse its discretion in sanctioning Doege and her attorney pursuant to section 13.01(e). See In re H.S.N., 69 S.W.3d 829, 835 (Tex.App.-Corpus Christi 2002, no pet.) (finding trial court did not abuse its discretion in awarding $950 in attorney's fees where attorney testified that $950 was a reasonable and necessary fee for the services performed); Coke v. Coke, 802 S.W.2d 270, 278 (Tex.App.-Dallas 1990, writ denied) (finding that under the record of the case, trial court did not abuse its discretion by awarding attorney's fees based on the uncontradicted testimony of attorney); Cohen v. Sims, 830 S.W.2d 285, 290 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (finding trial court did not abuse its discretion in awarding attorney's fees where attorney testified as to usual and customary fees, hours expended, and hourly rate); Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex.App.-San Antonio 1978, no writ) (finding trial court did not abuse its discretion in awarding attorney's fees in light of the record and attorney's testimony about customary charges in the area, hours worked, and his charges). We overrule Doege's first and second issues.
SUMMARY JUDGMENT
Doege's fifth amended petition alleged the hospital 1) maintained a dangerous condition on its premises and 2) negligently hired, supervised, trained and retained Montez after it had reason to know or did know of his history of past sexual harassment of other workers at the hospital. The hospital moved for summary judgment on the grounds that 1) it was not vicariously liable for Montez's alleged sexual assault under the doctrine of respondeat superior; 2) there was no evidence that the hospital had any basis to foresee that Montez would commit the sexual advances alleged by Doege; and 3) the hospital performed proper hiring, supervision, training and retention of Montez. In her final issue, Doege attacks the summary judgment rendered in favor of the hospital. Specifically, Doege asserts the trial court erred in admitting and considering incompetent summary judgment evidence from an interested witness that fails to meet the requirements of Texas Rule of Civil Procedure 166a(c) and the evidence presented created several fact issues regarding the hospital's liability.
In her fifth amended petition filed just prior to the hearing on the cross-motions for summary judgment, Doege abandoned her vicarious liability claims against the hospital. However, the hospital's motion for summary judgment reviewed at the hearing was submitted in response to Doege's prior petition, which included the vicarious liability claims. At the hearing, the hospital requested that its motion for summary judgment apply to Doege's fifth amended petition. This request was granted, even though Doege no longer asserted the hospital was liable under the doctrine of respondeat superior.
A. Standard Of Review
In order for a defendant to be entitled to summary judgment, it must either disprove, as a matter of law, at least one of the essential elements of each of the plaintiff's causes of action or establish one or more defenses as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex.App.-Amarillo 1985, writ ref'd n.r.e.). If the trial court does not specify the ground upon which it based its ruling, as in this case, the summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
In a traditional summary judgment proceeding, the movant has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a disputed material fact issue that precludes summary judgment, evidence favorable to the non-movant will be taken as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in her favor. Id. at 549. One may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex. 1983). Furthermore, Texas summary judgment practice is such that the burden of proof is never shifted to the non-movant unless and until the movant has established its entitlement to a summary judgment on the issues "expressly presented to the trial court by conclusively proving all essential elements of [its] cause of action or defense as a matter of law." Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989) (citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979)).
A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the non-movant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the non-movant brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex.App.-San Antonio 1999, no pet.).
B. Negligent Hiring, Supervision Retention Claims
A claim of negligent hiring and supervision is based on an employer's direct negligence instead of the employer's vicarious liability for the torts of its employees. See Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 950 (Tex.App.-Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex. 1995). Under the tort of negligent hiring and supervision, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act. Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97-98 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). The duty of the employer or contractee extends only to prevent the employee or independent contractor from causing physical harm to a third party. See Sibley v. Kaiser Found. Health Plan of Tex., 998 S.W.2d 399, 403-04 (Tex.App.-Texarkana 1999, no pet.); Hendrix v. Bexar County Hosp. Dist., 31 S.W.3d 661, 662 (Tex.App.-San Antonio 2000, pet. denied) (involving sexual assault upon patient by hospital employee); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 789-90 (Tex.App.-El Paso 1996, writ denied) (involving assault and battery of a customer).
The elements of a cause of action for negligently hiring, supervising, training, or retaining an employee are the following: (1) the employer owed the plaintiff a legal duty to hire, supervise, train, or retain competent employees; (2) the employer breached that duty; and (3) the breach proximately caused the plaintiff's injury. Labella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex.App.-Amarillo 1997, writ denied). However, the employer cannot be held liable if the employee does not commit an actionable tort recognized under common law. Gonzales v. Willis, 995 S.W.2d 729, 739-40 (Tex.App.-San Antonio 1999, no pet.). As such, negligent hiring is a dependent tort. Id.
We construe the hospital's motion for summary judgment to allege that it did not owe Doege a legal duty to hire, supervise, or retain competent employees or, in the alternative, did not breach that duty because "[the hospital] had performed proper hiring, supervision, training, and retention of Montez." In support, the hospital attached copies of documents received by Montez, including the employee orientation, training, and policy statements such as the Harassment Policy, Patient Bill of Rights, Customer Service Agreement, and Code of Ethics. The hospital also included the affidavit of Robin Anstad, the hospital director of radiology. After a challenge to the affidavit, the following relevant portion of the affidavit was admitted into evidence:
I have reviewed the Sid Peterson Memorial Hospital files of Rudy Montez and Millennium Staffing. . . . Rudy Montez was required to provide an employment history and references to show proof of licensure to perform the duties for which he was hired. Mr. Montez was given orientation and training in the policies and procedures of Sid Peterson Memorial Hospital. Mr. Montez was annually reviewed for competency in performing his duties at Sid Peterson Memorial Hospital.
This evidence alone, however, does not conclusively establish, as a matter of law, that the hospital did not owe a duty to Doege or that the hospital did not breach that duty. Casso, 776 S.W.2d at 556. Furthermore, the evidence presented by Doege raises fact issues as to whether the hospital breached its duty. For example, Doege included the deposition testimony of Juanita Flores, a nurse at the hospital, who testified that Montez made inappropriate sexual advances towards her one night at work prior to the date of Montez's alleged assault of Doege. Flores informed her supervisor and the hospital's assistant director about Montez's inappropriate behavior. Pursuant to the hospital employee handbook, "harassment of any kind will not be tolerated. Should there be an incident by . . . an individual who works in the hospital as a contract employee . . . the incident should be reported immediately to the Administrator or the Human Resources Director." Additionally, the hospital's Human Resources General Policy on Harassment provides, "the hospital will investigate complaints of harassment." According to Flores, the supervisor did not report the incident and Montez was never counseled or disciplined. The hospital's alleged failure to comply with its own policies is further supported by Montez's deposition testimony where he acknowledged that although he had signed the referenced documents offered into evidence by the hospital, "[he had] never seen any implementation [of the policies] on patient's rights or sexual harassment in the four and one half years" he was at the hospital. Because every reasonable inference must be indulged in Doege's favor and any doubts must be resolved in her favor, we hold this evidence raised a fact issue on whether the hospital was negligent in supervising and retaining Montez. Nixon, 690 S.W.2d at 549. Therefore, the trial court erred in rendering summary judgment in favor of the hospital on Doege's negligent hiring, supervision, training, and retention claims.
C. Premises Liability Claims
Doege's petition also alleges the hospital was negligent for maintaining a dangerous condition on its premises; namely, failing to keep its premises in a reasonably safe condition and failing to protect its patients from the unreasonable risks created by the hospital's retaining Montez as a radiology technician when the hospital allegedly had prior knowledge of his sexual behavior while on the job. In its summary judgment motion, the hospital challenged Doege's premises liability claim by merely asserting "there is no evidence that Sid Peterson Memorial Hospital had any basis to foresee that Defendant Rudy Montez would commit sexual advances of the description alleged upon any patient." Because the hospital filed a no-evidence motion for summary judgment on a single component of an element of Doege's claim, the burden fell on Doege to produce some probative evidence to raise a fact issue on forseeability, such as whether the hospital had any knowledge of Montez's prior sexual misconduct at the hospital. Merrell Dow Pharms., Inc., 953 S.W.2d at 711.
The hospital did not argue that a dangerous employee is not a dangerous condition; therefore, that issue is not before us. Instead, the hospital based its entitlement to summary judgment solely on its challenge to the forseeability component of Doege's premises liability claim.
When a party is an invitee, the elements of a premises liability claim are: (1) actual or constructive knowledge of a condition on the premises by the owner or occupier; (2) the condition posed an unreasonable risk of harm; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the plaintiff's injury. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99-100 (Tex. 2000); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Star Enterprise v. Marze, 61 S.W.3d 449, 461 (Tex.App.-San Antonio 2001, pet. denied). The components of proximate cause are cause-in-fact and foreseeability. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002).
Evidence of specific previous crimes on or near the premises may raise a fact issue on the foreseeability of a particular crime. Nixon, 690 S.W.2d at 550. Doege argues the deposition testimony of Juanita Flores shows the hospital had actual knowledge of Montez's prior sexual misconduct at the hospital. Flores testified that Montez made remarks to her about coming to a room the hospital provided for him, so that he could give her a massage. He also made comments to her regarding her lips and her overall appearance. These inappropriate conversations with Montez frightened Flores so much that she had security walk her out to her car that night because she feared another encounter with Montez. Flores testified that she told her supervisors about the incident, but nothing was done, as required by the hospital harassment policy and the employee handbook. Taking all evidence favorable to Doege as true and indulging every reasonable inference in her favor, we hold Flores's deposition testimony was sufficient to raise a fact issue on foreseeability. Nixon, 690 S.W.2d at 549. Therefore, we hold the trial court erred in rendering summary judgment in favor of the hospital on Doege's premises liability claim.
CONCLUSION
Because Doege's negligence claims, in part, fell under the MLIAA and there was sufficient evidence presented to substantiate the fees charged to the hospital by its attorney, we affirm the trial court's award of attorney's fees. However, because there are genuine issues of material fact regarding Doege's premise liability and negligent hiring, supervision, and retention claims, we reverse the trial court's order granting summary judgment and remand this cause to the trial court for further proceedings consistent with this opinion.