GANN v. ANHEUSER-BUSCH, INC.
Court of Appeals of Texas, Eighth District, El Paso.
July 25, 2012.
In sum, Gann has failed to address the majority of factors enumerated in Tokai Corp. and Timpte Indus., Inc., and, consequently, to produce any evidence on these factors, in arguing that because the risk of injury from a longneck bottle outweighs its utility, the bottle was defectively designed so as to render it unreasonably dangerous. Moreover, notwithstanding that the evidence upon which Gann relies is not supported by citations to the record, this evidence constitutes no evidence that the bottle was defectively designed so as to render it unreasonably dangerous. Accordingly, Gann has failed to produce evidence raising a genuine issue of fact on all the elements of her design defect claim. We therefore hold that the trial court did not err by granting summary judgment for Anheuser-Busch on Gann's design defect claim. Gann's first point of error is overruled.NEGLIGENCE
In her second and third points of error, Gann argues that the trial court erred by granting summary judgment for Anheuser-Busch and Falls Distributing, respectively, as to her negligence claims against them. We disagree.Applicable Law
To prevail on a common law negligence claim, a plaintiff must be able to prove three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damage proximately caused by the breach. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A plaintiff must prove the existence and violation of a duty owed by the defendant. Id. If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). Generally, no person has a legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). One exception to this rule may apply when a person controls the premises where the criminal acts occur. Id. "One who controls . . . 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." Id., citing Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). This duty derives from the concept that the party with the "power of control or expulsion" is in the best position to protect against the harm. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). When the party with the power of control should reasonably anticipate criminal conduct on the part of third persons on its premises, that party has a duty to take precautions against it. Id. A second exception may apply to a person who is not in control of the property at the time of the injury, but nevertheless creates a condition that permits or brings into being the criminal actions that result in the claimant's injury. Lefmark Mgmt. Co., 946 S.W.2d at 54, citing Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962). Whether a duty exists under either theory is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).Discussion