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Ngetich v. Breda

Court of Appeals of Texas, First District
Sep 20, 2022
No. 01-21-00502-CV (Tex. App. Sep. 20, 2022)

Opinion

01-21-00502-CV

09-20-2022

DZOBIBI NGETICH, Appellant v. GREGORY D. BREDA AND JOANNE BREDA, Appellees


On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2019-57943

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

MEMORANDUM OPINION

Peter Kelly Justice

Dzobibi Ngetich sued appellees Gregory D. and Joanne Breda (the "Bredas") for injuries she sustained when she stepped in hole in their yard. The trial court granted take-nothing summary judgment in favor of the Bredas. On appeal, Ngetich argues in four issues that the trial court erred by granting summary judgment because there were fact issues as to: (1) every element of her premises liability claim; (2) Ngetich's status as invitee, licensee, or trespasser on the Bredas' property; (3) gross negligence; and (4) whether the injury occurred on the Bredas' property.

We affirm.

Background

Dzobibi Ngetich worked as a claims adjuster for E.A. Renfroe & Company ("Renfroe"). After Hurricane Harvey, Renfroe contracted with State Farm to provide claims-adjustment services to State Farm's insureds. Ngetich was deployed to Houston to perform work under this contract.

On September 15, 2017, Ngetich was assigned to assess claims made by Margaret Anderson under her homeowner's insurance policy. Ngetich went to Anderson's house, met with Anderson, and inspected the interior of the home. Anderson claimed roof damage and leaks, and, to complete the assessment, Ngetich needed to climb onto the roof. Anderson told Ngetich that she wanted to tell her neighbors, the Bredas, that Ngetich would be on her roof. Ngetich followed Anderson, and the two women walked toward the Bredas' front door, across the Bredas' front lawn, between the house and the sidewalk. While walking, Ngetich stepped into a hole with her right foot. She fell face first, and she allegedly sustained injuries to her face and head, neck, chest, stomach, and knees. Ngetich momentarily lost consciousness due to the shock of the fall, and when she awoke, Anderson helped her out of the hole.

At her deposition, Ngetich was unable to describe the size or shape of the hole she stepped in.

Ngetich said that she was in pain but determined to complete her work. She climbed to the roof using a ladder, but she climbed down due to pain and fear that she might fall. At that point, Anderson offered to take Ngetich to an emergency room. Ngetich asked Anderson to call her supervisor, who arrived shortly after and took her to an emergency medical facility.

Ngetich later sued the Bredas for negligence, alleging that a condition on their premises posed an unreasonable risk of harm, specifically an unmarked hole covered with grass. She also alleged that the Bredas knew or should have known that the hole existed and was "in harm's way of Plaintiff." She alleged that the Bredas had a duty to use ordinary care to ensure that the premises did not present a danger to her and that they breached the duty of ordinary care by failing to inspect the premises, discover the hole, and correct or warn about the dangerous condition. She maintains that their negligence caused her to suffer serious injuries and to incur damages in the form of medical expenses, lost wages, impairment and disability, pain and suffering, and mental anguish.

The Bredas answered and filed a traditional motion for summary judgment. They argued that Ngetich was a trespasser and the only duty they owed her was not to commit gross negligence. They also asserted that the facts of the case did not rise to the level of gross negligence. They supported their summary-judgment motion with Ngetich's deposition testimony and Gregory Breda's declaration.

In her deposition, Ngetich testified that at the time she walked toward the Bredas' house, she did not know who they were. She testified that she never saw, met, or spoke to the Bredas. She also did not know, before filing the lawsuit, whether the Bredas owned their house, had insurance, or with whom they had insurance. She also could not describe the size or shape of the hole, and she testified that she did not measure it. She said that her supervisor measured the depth of the hole, and she thought he told her it was more than 14 inches deep.

In his declaration, Gregory Breda stated that he never met Ngetich. He stated that neither he nor his wife knew that anyone would be walking across their front yard on the day of the accident, and neither of them gave Ngetich permission to be on their property on the day of the accident or any other day.

He was aware that there had previously been a small hole in his front yard, where a 6-inch sapling had been transplanted and subsequently died. He stated:

I did not consider the small hole left by the removed sapling to present a safety concern. I mowed our yard, myself, and walked in the area where the sapling had once been on several occasions, and my foot was too big to fit into the hole. I did not believe that the hole
presented a danger to me, my wife, our pets, or anyone else. Certainly, no previous incidents or complaints involving the small hole had been conveyed to me or my wife.

In response, Ngetich relied on her affidavit, which was dated two months before her deposition, and the Bredas' interrogatory responses. She argued that she was an invitee on the Bredas' property because they, like Anderson, were insured by State Farm and because she was adjusting Anderson's claim on behalf of State Farm. In addition, she alleged that the Bredas' house sustained physical damage as a result of Hurricane Harvey, and she argued that, if they had asked, she could have provided them with information about the claim investigation process and the team assigned to their neighborhood. She contended that this demonstrated that she and the Bredas had mutually beneficial, present business relations.

In her affidavit, Ngetich averred that the hole had a depth of nine inches that was covered by grass. She attached a photograph to her affidavit. As to the photograph, she averred: "Exhibit 'A' depicts a deep grass-covered hole, and the failure to correct such a hole would be an entire want or [sic] care." She also said that Exhibit A was a "true, fair, and accurate photo" taken the day of and after her accident that showed the "subject grass-covered deep hole was at least 9 inches in depth."

The trial court granted the summary-judgment motion, and Ngetich appealed.

Analysis

On appeal, Ngetich challenges the summary judgment in four issues. She argues that there is a fact question about her status as invitee, licensee, or trespasser. She also argues that even if she has the status of trespasser, there is a fact question about whether the Bredas' failure to correct the hole in their front lawn constituted gross negligence.

Ngetich also presents an issue stating that there is a question of fact about whether the injury occurred on the Bredas' property. The record includes Ngetich's deposition testimony that she did not know whether the hole was on the Bredas' property, but the Bredas' summary-judgment argument did not rest primarily on an assertion that the accident did not occur on their property.

I. Standard of review

We review a trial court's summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). In doing so, "we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If the trial court does not state the grounds upon which it grants summary judgment, an appellate court will affirm the judgment if any of the grounds set forth by the movant is meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Lujan, 555 S.W.3d at 84. "If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment." Lujan, 555 S.W.3d at 84; see Maldonado v. Maldonado, 556 S.W.3d 407, 414 (Tex. App.-Houston [1st Dist.] 2018, no pet.). "A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

II. Premises liability

A. Premises liability is a special form of negligence.

The common-law doctrine of negligence consists of: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998). "Depending on the circumstances, a person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner." Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016); see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). "When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply," but a "claim against a property owner for injury caused by a condition of real property generally sounds in premises liability." Occidental Chem. Corp., 478 S.W.3d at 642, 644.

B. Duty in premises liability cases depends on the status of the plaintiff.

"The threshold question in a premises liability case is whether the defendant owes a duty to the injured plaintiff." Watanabe v. Summit Path Partners, LLC, No. 01-19-00302-CV, 2021 WL 3501542, at *8 (Tex. App.-Houston [1st Dist.] Aug. 10, 2021, no pet.) (citing Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020)). The existence of a duty is a question of law for the court to decide based on the facts of the case. Hillis, 602 S.W.3d at 440. For a duty to exist, the defendant must have possession or control over the premises where the injury occurred. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). The nature of the duty owed depends on whether the plaintiff is an invitee, licensee, or trespasser. Hillis, 602 S.W.3d at 440; W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Watanabe, 2021 WL 3501542, at *8.

1. Invitee

"An invitee is 'one who enters the property of another with the owner's knowledge and for the mutual benefit of both.'" Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015) (quoting Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996)); accord Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909 (Tex. App.-Houston [14th Dist.] 2009, no pet.). The duty owed by an owner or occupier of premises to an invitee is not that of an insurer. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). An owner or occupier of land must use reasonable care to protect an invitee from known conditions that create an unreasonable risk of harm and conditions that should be discovered by the exercise of reasonable care. Id.; Mayer, 278 S.W.3d at 910. A landowner must make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware, but the invitee is not. Austin, 465 S.W.3d at 203. A landowner generally has no duty to warn invitees of hazards that are open, obvious, or known to the invitee. Id. at 204.

2. Licensee

A licensee enters and remains on a premises with the owner's consent and for the licensee's own convenience, or on business with someone other than the owner. Mayer, 278 S.W.3d at 910 (citing Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (person other than owner present with consent from another whose right to be on the property originated from owner, such as subcontractor). "The duty owed to a licensee requires that 'a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.'" Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016) (quoting State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). Absent willful, wanton, or grossly negligent conduct, a licensee-plaintiff must prove:

(1) a condition of the premises created an unreasonable risk of harm to the licensee;
(2) the owner actually knew of the condition;
(3) the licensee did not actually know of the condition;
(4) the owner failed to exercise ordinary care to protect the licensee from danger;
(5) the owner's failure was a proximate cause of injury to the licensee.
Payne, 838 S.W.2d at 237.

3. Trespasser

"A trespasser enters another's property without lawful authority, permission, or invitation." Mayer, 278 S.W.3d at 910; Tex.-La. Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936) ("A trespasser is defined by Corpus Juris as follows: 'A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge.'"). "The only duty a premises owner or occupier owes a trespasser is not to injure him willfully, wantonly, or through gross negligence." Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).

III. The trial court properly granted summary judgment.

As pleaded, Ngetich alleged a premises liability claim based on her having the status of an invitee. Ngetich alleged that the Bredas had a duty to exercise ordinary care, and they breached that duty by failing to inspect their front lawn and correct the existence of a hole. Only when a plaintiff is an invitee is the premises owner held to the standard of reasonable care. See CMH Homes, 15 S.W.3d at 101.

Here, the summary-judgment evidence conclusively showed that Ngetich did not have permission to be on the Bredas' premises. She acknowledged that in her deposition, and Gregory Breda stated the same in his declaration. See Mayer, 278 S.W.3d at 910 (holding that trespasser is one who enters property without lawful authority, permission, or invitation). Ngetich testified that she never had any contact whatsoever with the Bredas-she never met them, saw them, or spoke to them. Gregory Breda's declaration was the same.

Ngetich argues that her presence on the Bredas' property was of mutual benefit because the Bredas are insured by State Farm. But the summary-judgment evidence did not show that Ngetich and the Bredas had any shared economic or business interest. See Catholic Diocese of El Paso v. Porter, 622 S.W.3d 824, 829 (Tex. 2021) ("We long ago held that the requisite 'mutual benefit' to an invitee and an owner or occupier of property is a shared business or economic interest."). On appeal, Ngetich argues that she had a right to be on Bredas property by virtue of their homeowner's insurance policy with State Farm. She maintains that there was at least "a potential of pecuniary profit" to the Bredas in terms of prompt repair of damages caused by the hurricane or a "better understanding" of the claim handling process.

This argument is not supported by the summary-judgment evidence. The summary-judgment evidence indicated that the Bredas' house had sustained some damage due to Hurricane Harvey, but it did not indicate that the Bredas had made a claim under their insurance policy to which Ngetich was assigned as a claims adjuster. Nor did anything in the summary-judgment evidence indicate that Ngetich's role as contract claims adjustor for State Farm included speaking to neighbors to whose claims had not been assigned to her. Finally, Ngetich testified that when she walked across the Bredas' front lawn, she did not know anything about them, including whether they were homeowners, or whether they were insured by State Farm.

We conclude that Ngetich, who had no right, permission, or invitation to be on the Bredas' property, was a trespasser, not an invitee. See Mayer, 278 S.W.3d at 910.

On appeal, Ngetich challenges the summary judgment as to gross negligence by arguing that even if she had the status of a trespasser, the trial court erred by granting summary judgment. We disagree. First, she did not allege gross negligence in her petition. Second, the evidence conclusively disproves gross negligence. See Tex. Utils. Elec. Co., 947 S.W.2d at 193 (stating rule that premises owner owes duty not to injure trespasser willfully, wantonly, or through gross negligence).

Gross negligence requires proof of two elements:
(1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed[s] in conscious indifference to the rights, safety, or welfare of others.
Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (quoting Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)).

"Under the first, objective element, an extreme risk is 'not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.'" Boerjan, 436 S.W.3d at 311 (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). "Under the subjective element, 'actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated that it did not care.'" Id. (quoting Ellender, 968 S.W.2d at 921).

As to gross negligence, the evidence consisted of Ngetich's affidavit, her deposition testimony, and Breda's declaration. In her affidavit, Ngetich averred that the hole was nine inches deep, and she attached a photograph purporting to show the hole that she stepped in with a tape measure inserted into it. Ngetich averred in her affidavit that the photograph showed that the hole was nine inches deep, but the angle and clarity of the photograph does not clearly show how deep the hole is. Nor is it clear how wide or long the hole was or its shape. Nothing in the appellate record indicates whether the sole photograph attached to Ngetich's deposition depicted the entire hole or just a part of the hole.

In her deposition, which was taken two months after the date of her affidavit, Ngetich testified that she could not recall anything about the size or shape of the hole. She said that her supervisor later measured the depth of the hole, and she thought he told her it was more than 14 inches deep. She also said that the lawn was strewn with debris, including shingles, and the grass had grown tall.

Gregory Breda's declaration stated that the hole was created when he transplanted a six-inch sapling that died shortly after. He attested that he was aware of the "small hole left by the removed sapling," because he mowed the yard himself and walked in the area where the sapling had been on several occasions. He stated that his foot was too big to fit into the hole, and therefore he did not believe that the hole posed a danger to him, his wife, his pets, or anyone else. He also stated that he was not aware of any other incidents or complaints involving the small hole.

The evidence shows that the hole did not pose a likelihood of serious injury, objectively, or that Breda was consciously indifferent to the risk posed by the existence of the hole. See Boerjan, 436 S.W.3d 31.

We conclude that Ngetich had the status of a trespasser and that the summary-judgment evidence conclusively proved that the Bredas did not act with gross negligence. We hold that the trial court properly granted summary judgment, and we overrule all of Ngetich's issues.

Conclusion

We affirm the judgment of the trial court.


Summaries of

Ngetich v. Breda

Court of Appeals of Texas, First District
Sep 20, 2022
No. 01-21-00502-CV (Tex. App. Sep. 20, 2022)
Case details for

Ngetich v. Breda

Case Details

Full title:DZOBIBI NGETICH, Appellant v. GREGORY D. BREDA AND JOANNE BREDA, Appellees

Court:Court of Appeals of Texas, First District

Date published: Sep 20, 2022

Citations

No. 01-21-00502-CV (Tex. App. Sep. 20, 2022)