Opinion
No. 05-16-00455-CV
04-13-2017
SUNNY GARREN, JACOBY SEABOURN, AND CHRISTOPHER JONES, Appellants v. RAY ANTHONY CUNNINGHAM AND GREYHOUND LINES, INC., Appellees
On Appeal from the 44th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-11359
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
A passenger on a Greyhound bus traveling through Maricopa County, Arizona, attacked the bus driver, seizing the steering wheel and causing the bus to leave the divided interstate highway and enter a median before coming to a stop. Some passengers on the bus, including Sunny Garren, Jacoby Seabourn, and Christopher Jones (collectively "appellants"), were allegedly injured. Appellants filed a lawsuit against Greyhound Lines, Inc. and bus driver Ray Anthony Cunningham (collectively "appellees"), claiming that appellees were negligent and grossly negligent in failing to protect them from the criminal acts of the attacker. The trial court granted summary judgment in favor of appellees. In two issues, appellants argue the trial court erred in granting summary judgment because, as a common carrier, Greyhound owes passengers a heightened duty of care to protect them from violence perpetrated by another passenger, and appellant's summary judgment evidence raised a genuine issue of material fact as to whether Greyhound's heightened duty of care to its passengers was breached. For reasons explained in this opinion, we affirm the trial court's judgment.
Background
Appellants' Pleading
On January 23, 2014, appellants were passengers on a Greyhound bus being driven by Cunningham southbound on Interstate 10. Appellants allege another passenger, Maquel Morris, opened the security gate around Cunningham, jumped onto the dashboard area, and took control of the steering wheel away from Cunningham. Morris's actions caused the bus to leave the divided highway and come to rest in the median between the lanes of traffic and resulted in appellants' physical injuries.
Appellants claim Cunningham knew Morris was dangerous to other passengers and failed to "throw [Morris] off the bus" in accordance with Greyhound policies, and Cunningham violated the duty he owed them to exercise ordinary care in the operation of the bus by failing to keep a proper lookout and pay attention, protect passengers, and avoid the collision. Appellants further claim Cunningham was negligent per se for violation of section 547.101 of the Texas Transportation Code by failing to protect the passengers and control the speed of the bus. Under the doctrine of respondeat superior, appellants claim Greyhound is vicariously liable for Cunningham's negligence. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (under doctrine of respondeat superior, employer is vicariously liable for negligence of an agent or employee acting within scope of his employment). Appellants also assert Greyhound knew or should have known "to make sure the property was safe from all forms of danger" and had a duty to inspect "the property and make it safe," and Greyhound's "failure to keep the property safe from all forms of danger" and failure "to implement, promulgate and mandate policies and procedures regarding the safe operation" of the bus constituted negligence and gross negligence that proximately caused their injuries and damages. Appellants plead the activities and conduct of appellees constituted a "joint enterprise" pursuant to an express or implied agreement for the common purpose of, and pecuniary interest in, operation of the bus.
Section 547.101 of the transportation code relating to adoption of rules and standards for vehicle equipment provides:
(a) The department may adopt rules necessary to administer this chapter.
(b) The department may adopt standards for vehicle equipment to:
(1) protect the public from unreasonable risk of death or injury; and
(2) enforce safety standards of the United States as permitted under the federal motor vehicle act.
(c) A department standard must:
(1) duplicate a standard of the United States that applies to the same aspect of vehicle equipment performance as the department standard; or
(2) if there is no standard of the United States for the same aspect of vehicle equipment performance as the department standard, conform as closely as possible to a relevant standard of the United States, similar standards established by other states, and a standard issued or endorsed by recognized national standard-setting organizations or agencies.
(d) The department may not adopt a vehicle equipment standard inconsistent with a standard provided by this chapter.TEX. TRANSP. CODE ANN. § 547.101 (West 2011).
Motions for Summary Judgment
Appellees moved for a no-evidence and a traditional summary judgment on appellants' negligence claims on the bases that appellees did not owe appellants a legal duty to protect them from the criminal acts of Morris and there is no more than a scintilla of summary judgment evidence in support of, or the evidence conclusively negates one or more essential elements of, appellants' negligence claims. Appellees sought a traditional summary judgment on appellants' gross negligence claims on the bases that appellants could not recover exemplary damages for the criminal acts of another and there is no evidence of one or both of the statutory elements of that claim. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 41.001(11) (West Supp. 2016), 41.003 (West 2015). Greyhound sought a no-evidence summary judgment on appellants' gross negligence claim on the basis there is no more than a scintilla of summary judgment evidence in support of, or the evidence conclusively negates one or more of the essential elements of, a claim of corporate liability for gross negligence.
In response to the motions for summary judgment, appellants contended they presented some evidence appellees breached their legal duty to appellants and "thus proximately caused" appellants' damages. Appellants acknowledged that generally "a person has no legal duty to protect another from the criminal acts of a third person," but argued appellees owed a legal duty to them because Morris's criminal activity was a foreseeable danger. Appellants asserted the evidence created a genuine issue of material fact as to whether appellees had actual and direct knowledge that an imminent "occurrence will or could occur." With regard to their gross negligence claims against appellees, appellants responded to appellees' motions for summary judgment by arguing that summary judgment evidence presented a genuine issue of material fact as to whether appellees were aware of the danger posed by Morris and acted with conscious indifference to it.
Summary Judgment Evidence
A report concerning the incident at issue, prepared by officers of the Arizona Department of Public Safety, (the Crash Report) contains statements made by Bryanna Moore, Morris's girlfriend, who was traveling with him. Moore stated that before they boarded the Greyhound bus in Los Angeles, California, Morris had been using methamphetamine, had not been himself, had been awake for a couple of days, and was "having problems" and thought someone was trying to kill him. According to Moore, Morris only became paranoid when he used methamphetamine, and Morris had acted the same way two years previously at the same Los Angeles bus station when he was under the influence of methamphetamine.
Moore stated that while en route, the bus made a stop and Morris exited the bus to smoke a cigarette. At the stop, Morris was "contacted by a Greyhound employee" who noticed Morris's behavior. The Greyhound employee asked Morris if he was okay and stated that if he was not, the employee was not going to allow Morris to re-board the bus. Moore told the Greyhound employee, "I got him, and he is going to be fine." After re-boarding the bus and departing from the stop, Morris began to cry audibly and talk about someone killing him. Moore and Morris fell asleep until the bus made a second stop approximately one hour later, and they went into a store where Morris "stood with a blank stare." A female passenger complained to Cunningham that Morris was talking about someone trying to kill him and was arguing with Moore. Cunningham asked Morris and Moore if they were going to be "okay," and, if not, they could not re-board the bus. Moore stated she assured the bus driver they were "okay." After re-boarding, Morris fell asleep. She was awakened by a loud noise and saw Morris with his hands on the steering wheel of the bus trying to take control of it.
The Crash Report contains Cunningham's statement that before the incident, "he had been receiving reports from the other passengers" about Morris "acting strangely." At a stop in Quartzsite, Arizona, Cunningham spoke to Morris, and Morris told Cunningham he would have no problems with him. About an hour later, Morris "kicked open" the door separating the passengers from the driver's compartment, grabbed the steering wheel, and yelled he wanted off the bus.
Also contained in the Crash Report are statements made by bus passengers following the incident. Gregory Fort indicated he spoke with Morris at the San Bernardino, California, bus station. Morris told Fort he was "having an issue." When Fort put his arm on Morris's shoulder, Morris jerked away and began to cry and shake. Theresa Dehorton was seated in the rear of the bus across from Morris and Moore. Dehorton described Morris's behavior as "bizarre and out of the ordinary," Morris and Moore were arguing, and Morris told Moore he wanted to get off the bus. Onika Williams, also seated near the rear of the bus, described a man and woman sitting next to her arguing and the woman arguing with another female passenger. Chase Portugal described Morris and Moore as acting "bizarre and distracting" and arguing "on and off during the entire trip." Appellant Jones saw Morris and Moore inside a store at a stop in Blythe, California, and they looked nervous. Appellant Garren stated Cunningham "spoke to some passengers about some distracting behavior," but she did not see who he was talking to. Susana Ordinola stated she did not observe any unusual behavior on the part of Morris or any other fellow passengers, although she indicated another passenger was complaining to her about Morris.
An excerpt from a January 23, 2014 Huffington Post article regarding the incident contains Ordinola's statement that she heard other bus passengers complaining to Cunningham about Morris during a stop in Blythe, California, and she then saw Cunningham speak to Morris. Ordinola was then reported to have said that after the bus entered Arizona, Morris suddenly ran toward the driver and screamed, "Everybody's going to die."
Appellees filed objections to appellants' summary judgment evidence. In their appellate brief, appellees refer specifically to their objections to Ordinola's "alleged statements" in the Huffington Post article. Appellees acknowledge in their appellate brief that the trial court did not rule on their objections, but they assert that, in granting a summary judgment, the trial court presumably disregarded incompetent evidence and considered only competent evidence in reaching its decision.
The granting of a summary judgment motion 'does not necessarily provide an implicit ruling that either sustains or overrules the objections to the summary-judgment evidence.'" Bastida v. Aznaran, 444 S.W.3d 98, 104 (Tex. App.—Dallas 2014, no pet.) (quoting Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex. App.—Dallas 2013, no pet.)). On this record, we cannot imply a ruling on appellees' objections to the contents of the Huffington Post article. See id.; Ennis, Inc. v. Dunbrooke Apparel Corp., 427 S.W.3d 527, 532 (Tex. App.—Dallas 2014, no pet.); Hewitt v. Biscaro, 353 S.W.3d 304, 307 (Tex. App.—Dallas 2011, no pet.).
In the Crash Report, Dehorton is reported to have stated Morris moved "like a cheetah up the aisle" to the driver, broke through the door to the driver's compartment, and grabbed the steering wheel. Fort stated Morris pushed open the gate separating the passengers from the driver's compartment, jumped on Cunningham, and screamed he was going to "flip" the bus. After Morris was taken into custody following the incident, he was screaming that people were trying to kill him and he wanted off of the bus because a man with a gun was trying to kill him.
Morris was found guilty in Arizona of two counts of dangerous felony aggravated assault and one count of non-dangerous felony aggravated assault. He received sentences of thirteen years' confinement on each of the counts of dangerous felony aggravated assault and was placed on probation on the count of non-dangerous felony aggravated assault.
Cunningham testified in his deposition that before Morris boarded the bus in Los Angeles, he "checked" Morris's behavior and concluded Morris had done nothing wrong. Cunningham stated it is the driver of a Greyhound bus that must determine whether a passenger should be removed from the bus. According to Cunningham, no passenger came to him with a complaint Morris was behaving in a hostile manner. Cunningham did not observe any erratic behavior on the part of Morris until Morris fought Cunningham for control of the steering wheel.
Alan Smith, director of safety and security for Greyhound, testified in his deposition that a Greyhound bus driver has a responsibility to ensure the safety of bus passengers. If a Greyhound bus driver observes a "hostile situation," the driver would need to determine how the situation had evolved, how serious it had become, and whether there was any imminent danger or serious safety concern for himself or the passengers. Smith understood Greyhound's "management team" in Los Angeles spoke with Morris prior to the trip and was not aware of any "issues" with him and that Morris only later began to behave erratically and attacked Cunningham.
Smith testified a Greyhound bus driver has been attacked by a passenger on more than two occasions. An excerpt from an internet blog prepared by "GJEL Accident Attorneys" concerning "Greyhound Bus Accidents Since 2000" references an October 3, 2001 incident in Tennessee "soon after the terrorist attacks on 9/11" in which a suspected terrorist murdered a Greyhound bus driver," resulting in the bus "careening into traffic," and a September 30, 2002 incident on a Greyhound bus traveling from Los Angeles to San Francisco, California, in which a passenger attacked the bus driver. The internet blog indicated the September 30, 2002 incident resulted in Greyhound installing driver shields on all vehicles and prohibiting passengers from sitting in seats directly behind the driver. Smith testified that the gate between the bus driver and the passengers, like the one Morris broke through, is intended to serve as a deterrent and afford the driver time if there is an "issue" to slow the bus and pull off the roadway. According to Smith, Greyhound provides safety training to its bus drivers. If there is an imminent danger to the bus driver or passengers, the driver is trained to activate an emergency alert signal to Greyhound's central office.
Order Granting Summary Judgment
The trial court signed an order granting summary judgment in favor of appellees and dismissing appellants' claims with prejudice. The trial court's summary-judgment order does not state the basis or bases for the trial court's ruling. Appellants filed this appeal of the trial court's summary-judgment order challenging only the grant of summary judgment on their common law negligence claims against appellees.
Standard of Review
We review a trial court's grant of summary judgment de novo. Sw. Bell Tele., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015). The standards of review for traditional and no-evidence summary judgments are well known. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). With respect to a traditional motion for summary judgment, the movant must prove there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015). If the movant meets the burden of establishing each element of the claim or defense on which it seeks summary judgment, the burden then shifts to the non-movant to disprove or raise an issue of fact as to at least one of those elements. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). The non-movant has the burden in its summary judgment response to either (1) present a disputed fact issue as to whether the opposing party has failed to satisfy its burden of proof, or (2) establish at least the existence of a fact issue on each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (party may defeat motion for summary judgment by presenting evidence sufficient to raise fact issue). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. To defeat a no-evidence summary judgment, the non-movant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also TEX. R. CIV. P. 166a(i).
In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the non-movant. SeaBright Ins. Co., 465 S.W.3d at 641; Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). We credit evidence favorable to the non-movant if a reasonable factfinder could, and we disregard evidence contrary to the non-movant unless a reasonable factfinder could not. SeaBright Ins. Co., 465 S.W.3d at 641; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Gish, 286 S.W.3d at 310; see also 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008) (in reviewing trial court's grant of summary judgment, appellate court takes as true all evidence favorable to non-movant, indulging every reasonable inference and resolving any doubts in non-movant's favor).
When a party moves for summary judgment on multiple grounds and the trial court's order granting summary judgment does not specify the ground or grounds on which it was based, a party who appeals that order must negate all possible grounds upon which the order could have been based by either asserting a separate issue challenging each possible ground, or asserting a general issue that the trial court erred in granting summary judgment and within that issue providing argument negating all possible grounds upon which summary judgment could have been granted. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). If an appellant does not challenge each possible ground for summary judgment, we must uphold the summary judgment on the unchallenged ground. See id.; see also Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.—Dallas 2005, no pet.) ("[A] reviewing court will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging all grounds on which the summary judgment could have been granted.").
Where, as here, a party moves for both a traditional and a no-evidence summary judgment, we first review the trial court's summary judgment under the no-evidence standards of rule of civil procedure 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If appellants failed to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements of their claims, then we need not address whether the trial court should have granted appellees' traditional summary judgment motion. See id.
Foreseeability of Criminal Act of Third Party
In their first issue, appellants contend the trial court erred in granting summary judgment in favor of appellees on appellants' common law negligence claims because Greyhound, a common carrier, owed its passengers a heightened duty of care to protect them from violence perpetrated by another passenger. In their second issue, appellants assert the trial court erred in granting summary judgment on their common law negligence claims because summary judgment evidence raises a genuine issue of material fact as to whether Greyhound's heightened duty of care to its passengers was breached.
It is undisputed that Greyhound is a common carrier and that appellants were passengers on a Greyhound bus at the time of the incident. Common carriers "are held to a higher standard of care when transporting passengers." Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex. 2003); Dallas Area Rapid Transp. v. Morris, 434 S.W.3d 752, 758 (Tex. App.—Dallas 2014, pet. denied). That standard has been defined as "that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances." Speed Boat Leasing, 124 S.W.3d at 212 (quoting Dallas Ry. & Terminal Co. v. Travis, 125 Tex. 11, 78 S.W.2d 941, 942 (1935)); see also City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex. 1970) (as carrier of passengers, bus company is under duty to exercise "such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them, as would be used by a very cautious, prudent and competent man under the same or similar circumstances").
In determining whether the trial court erred by granting summary judgment in favor of appellees on their common law negligence claims, the initial determination to be made is whether there is probative summary judgment evidence that Cunningham knew or had reason to know of a foreseeable risk of Morris attacking him, taking control of the steering wheel, and crashing the bus. In focusing on the standard of care of a common carrier, appellants overlook the rule that "[b]efore imposing a duty of care, . . . the risk of harm must be foreseeable." Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002) (quoting Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606 (1960)); see also Dozier v. AMR Corp., No. 02-09-186-CV, 2010 WL 3075633, at *4 (Tex. App.—Fort Worth Aug. 5, 2010, no pet.) (mem. op.) (appellant asserted common carrier airline owed her a "high degree of care" and airline employees should have patrolled aisles of plane and policed passengers; "[C]ourts will not impose a duty unless the risk of harm is foreseeable."). The Texas Supreme Court "ha[s] described foreseeability as the 'foremost and dominant consideration' in the duty analysis." Peavy, 89 S.W.3d at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)).
It is a well-settled general rule that property owners have no legal duty to protect persons from criminal acts of a third person. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). However, a property owner who "controls the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." UDR Tex. Props., L.P. v. Petrie, No. 15-0197, 2017 WL 382426, at *2 (Tex. Jan. 27, 2017) (quoting Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997)). The Texas Supreme Court has "consistently said that a risk must be foreseeable and unreasonable to impose a duty on a property owner." Id.; see also Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) ("The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty . . . ."). "This approach is not peculiar to premises-liability cases; it is essential to the determination of duty in all of tort law." UDR Tex. Props., L.P., 2017 WL 382426, at *2. "[O]nce foreseeability is established, 'the parameters of the duty must still be determined.'" Id. (quoting Timberwalk, 972 S.W.2d at 756). "[F]oreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties." Id. (quoting Timberwalk, 972 S.W.2d at 756).
The Texas Supreme Court "conceived the Timberwalk factors as a means to aid courts in determining foreseeability specifically." Id. at *3; see also Timberwalk, 972 S.W.2d at 757. Each factor "focus[es] doggedly on foreseeability." UDR Tex. Props., L.P., 2017 WL 382426, at *3. "First, proximity: 'For a landowner to foresee criminal conduct on property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity.'" Id. (quoting Timberwalk, 972 S.W.2d at 757). "Second, recency and frequency: 'Foreseeability also depends on how recently and how often criminal conduct has occurred in the past.'" Id. (quoting Timberwalk, 972 S.W.2d at 757-58). "Third: similarity: 'The previous crimes must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger.'" Id. (quoting Timberwalk, 972 S.W.2d at 758). "And fourth: publicity: 'The publicity surrounding the previous crimes helps determine whether a landowner knew or should have known of a foreseeable danger.'" Id. (quoting Timberwalk, 972 S.W.2d at 758). "These factors—proximity, recency, frequency, similarity, and publicity—must be considered together in determining whether criminal conduct was foreseeable." Id.
The summary judgment evidence established Morris, who was under the influence of methamphetamine, believed someone was trying to kill him when he boarded the Greyhound bus in Los Angeles. Greyhound's "management team" in Los Angeles spoke with Morris and was unaware of any "issues" with him. At a bus stop, Morris was "contacted by a Greyhound employee" who had noticed Morris's behavior. The Greyhound employee asked Morris if he was okay and stated that if Morris was not, he was not going to allow Morris to re-board the bus. Moore told the Greyhound employee, "I got him, and he is going to be fine." After re-boarding the bus and departing from that stop, Morris began to cry audibly and talk about someone killing him. At a second stop approximately one hour later, Morris went into a store where he looked nervous and "stood with a blank stare." Although Ordinola did not observe any unusual behavior by Morris, another passenger complained to her about Morris. Ordinola heard other bus passengers complaining to Cunningham about Morris. A female passenger complained to Cunningham that Morris was talking about someone trying to kill him and arguing with Moore. Cunningham also received reports from passengers of Morris "acting strangely." Garren stated Cunningham spoke to some passengers, presumably Morris and Moore, about some "distracting behavior." Cunningham spoke to Morris and Moore, and informed them that if they were not going to be "okay," they could not re-board the bus. Morris told Cunningham he would have no problems with him.
After the incident, passengers described their observations regarding Morris and Moore. At the San Bernadino, California, bus station, Morris told Fort he was "having an issue," and he began to cry and shake when Fort put his arm on Morris's shoulder. Dehorton stated Morris's behavior was "bizarre and out of the ordinary," Morris and Moore were arguing, and Morris told Moore he wanted to get off the bus. Williams described a man and woman sitting next to her arguing and the woman arguing with another female passenger. Portugal described Morris and Moore as acting "bizarre and distracting" and arguing "on and off during the entire trip."
Smith, Greyhound's director of safety and security, testified a Greyhound bus driver has a responsibility to ensure passengers aboard a Greyhound bus are safe. If a Greyhound bus driver observes a "hostile situation," the driver would need to determine how the situation had evolved, how serious it had become, and whether there was any imminent danger or serious safety concern for himself or the passengers.
According to Cunningham, it is the driver of a Greyhound bus that must determine whether a passenger should be removed from the bus. No passenger came to Cunningham with a complaint Morris was behaving in a hostile manner. Cunningham did not observe any erratic behavior on the part of Morris until Morris fought Cunningham for control of the steering wheel. Morris "kicked open" the barrier separating the passengers from the driver's compartment, grabbed the steering wheel, and yelled he wanted off the bus, he was going to flip the bus, and "Everybody's going to die." After the incident, Morris was screaming that people were trying to kill him and he wanted off of the bus because a man with a gun was trying to kill him.
Smith testified that Greyhound bus drivers had been attacked by a passenger on more than two occasions. An internet blog refers to a Tennessee incident in October 2001, in which a suspected terrorist murdered a Greyhound bus driver, and a California incident in September 2002, in which a passenger attacked a Greyhound bus driver, resulting in Greyhound installing driver shields on all vehicles and prohibiting passengers from sitting in seats directly behind the driver. Smith testified the gate between the bus driver and passengers, like the one Morris broke through, is intended to serve as a deterrent and afford the driver time if there is an "issue" to slow the bus and pull off the roadway. According to Smith, Greyhound provides safety training to its bus drivers. If there is an imminent danger to the bus driver or passengers, the driver is trained to activate an emergency alert signal to Greyhound's central office.
We first apply the Timberwalk factors of proximity, recency, frequency, similarity, and publicity to the summary judgment evidence in determining whether Morris's criminal assault on Cunningham should have been foreseeable based on other incidents. See UDR Tex. Props., L.P., 2017 WL 382426, at *3. Greyhound was aware of more than two incidents of an attack on a Greyhound bus driver by a passenger. The only specific incidents mentioned in this record are a 2001 attack on a Greyhound bus driver by a suspected terrorist and a 2002 attack on a Greyhound bus driver in California by a bus passenger. Those two incidents were temporally remote, occurring more than eleven years prior to the 2014 incident at issue. See Timberwalk, 972 S.W.2d at 758 (occurrence of a few crimes over an extended time period negates foreseeability element). The summary judgment evidence established the 2001 incident was a dissimilar attack on the bus driver by a suspected terrorist, and there is no summary judgment evidence establishing any similarity of the 2002 attack to the incident at issue. Application of the Timberwalk factors to the record of this case yields a conclusion that the two, temporally remote, prior instances of a passenger attacking a Greyhound bus driver would have not caused Morris's criminal conduct to have been reasonably foreseeable by Cunningham.
Next, we examine Morris's behavior preceding his attack on Cunningham to assess whether Morris's criminal conduct was reasonably foreseeable. While the summary judgment evidence establishes a Greyhound bus driver has a responsibility to ensure passengers are safe, the summary judgment evidence relating to Morris's behavior prior to the attack was not of a nature that should reasonably have caused Cunningham to anticipate or foresee that Morris posed a threat of attacking Cunningham, taking control of the steering wheel, and crashing the bus. The summary judgment evidence established that before the incident, a "Greyhound employee" took note of Morris's "behavior" and various individuals stated Morris was paranoid, crying audibly, talking about someone trying to kill him and wanting to get off the bus, standing with a blank stare, arguing with his girlfriend, and acting in a manner characterized as strange, distracting, bizarre, nervous, and out of the ordinary. However, none of the summary judgment evidence suggests any Greyhound employee, including Cunningham, or any passenger on the bus perceived Morris as exhibiting behavior that posed an imminent threat to the physical safety of anyone on the bus; indeed, the evidence established Morris appeared to be concerned for his own safety. Morris did not exhibit hostile behavior until suddenly and without warning he charged to the front of the bus and broke through the barrier separating the bus driver from the passengers.
Considering the evidence in the light most favorable to non-movant appellants, we are constrained to conclude there is no probative evidence that Greyhound employee Cunningham should have reasonably foreseen the criminal act of Morris. Because appellants produced no evidence raising a genuine issue of material fact with regard to reasonable foreseeability of Morris's criminal act of attacking Cunningham, we conclude the trial court did not err by granting appellees' no-evidence motion for summary judgment on appellants' common law negligence claims against Cunningham and Greyhound. See Gish, 286 S.W.3d at 310; see also TEX. R. CIV. P. 166a(i). We resolve appellants' first and second issues against them.
Because we conclude the trial court did not err in granting appellees' no-evidence motion for summary judgment on appellants' common law negligence claims, we need not address whether the trial court should have granted the traditional motion for summary judgment on those claims. See Ridgway, 135 S.W.3d at 600.
Gross Negligence and Negligence Per Se Claims
In this appeal, appellants challenge only the grant of summary judgment on their common law negligence claims against appellees. Accordingly, we affirm the trial court's grant of summary judgment on appellants' negligence per se and gross negligence claims. See Yeske v. Piazza Del Arte, Inc., No. 14-15-00633-CV, 2016 WL 7436507, at *12 (Tex. App.—Houston [14th Dist.] Dec. 22, 2016, no pet.) (affirming grant of no-evidence motion for summary judgment because appellant did not address claims on appeal); see also Richardson v. Potter's House of Dallas, Inc., No. 05-16-00646-CV, 2017 WL 745803, at *2 (Tex. App.—Dallas Feb. 27, 2017, no pet. h.) (mem. op.).
Further, because we have concluded appellees were entitled to summary judgment on appellants' common law negligence claims, it follows that appellants' claims that appellees were grossly negligent must also fail. See Gonerway v. Corrections Corp. of Am., 442 S.W.3d 443, 451 (Tex. App.—Dallas 2013, no pet.) (other than workers' compensation cases in which exemplary damages are sought for death of employee covered by workers' compensation insurance, a finding of ordinary negligence is prerequisite to a finding of gross negligence); First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 494 (Tex. App.—Dallas 2001, no pet.) (although gross negligence refers to a different character of conduct that ordinary negligence, one's conduct cannot be grossly negligent without being negligent).
Conclusion
We affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 160455F.P05
JUDGMENT
On Appeal from the 44th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-14-11359.
Opinion delivered by Justice Fillmore, Justices Lang and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Ray Anthony Cunningham and Greyhound Lines, Inc. recover their costs of this appeal from appellants Sunny Garren, Jacoby Seabourn, and Christopher Jones. Judgment entered this 13th day of April, 2017.