Court of Appeals of Texas, Houston (14th Dist.).
HNMC, INC., Appellant
FRANCIS S. CHAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LENY REY CHAN, JONATHAN CHAN, AND JUSTIN CHAN, Appellees
December 30, 2021
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2015-18367
En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Poissant authored an En Banc Majority Opinion, which was joined by Justices Bourliot, Zimmerer, Spain, and Hassan. Justice Hassan authored an En Banc Concurring Opinion, which was joined by Justices Bourliot and Spain. Chief Justice Christopher authored an En Banc Dissenting Opinion, which was joined by Justice Wilson. Justice Jewell authored an En Banc Dissenting Opinion, which was joined by Chief Justice Christopher and Justices Wise and Wilson.
OPINION ON MOTION FOR EN BANC RECONSIDERATION
Margaret “Meg” Poissant Justice
Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.
This court issued its opinion and rendered judgment in this case on May 28, 2020. After the filing of a timely motion for en banc reconsideration, this Court has decided to grant the motion for en banc reconsideration.1 We withdraw our initial opinion and judgment of May 28, 2020, and substitute this opinion in its stead. We affirm.
Appellant Houston Northwest Medical Center (“HNMC”) appeals the trial court judgment in favor of appellees Francis S. Chan, Jonathan Chan, and Justin Chan—the husband and sons, respectively, of Leny Rey Chan, deceased.2 In five issues, HNMC argues that: (1) appellees’ claims are barred by workers’ compensation coverage; (2) it owed no duty to Chan in a public roadway; (3) appellees cannot recover under a general theory of negligence in this case; (4) the evidence is legally and factually insufficient to support the jury’s findings that HNMC breached a duty and that said breach caused Chan to suffer damages; and (5) the trial court erred by admitting “inadmissible evidence” or evidence “prohibited by the court” of pertaining to other pedestrian-vehicle incidents on the premises. We address each issue in turn as they were presented on appeal.
Chan worked as a nurse for more than thirty years at HNMC. After her shift ended on March 17, 2015, Chan left the building from the northeast door. Adjacent to the northeast side of the building is Cali Drive, a public roadway owned and maintained by Harris County. Chan’s car was parked in a surface parking lot across Cali Drive owned by HNMC. The quarter-mile long parking lot has two pedestrian gates at each end of the lot and a single operative vehicle entrance/exit at a mid-block location, almost directly across from the northeast hospital exit. Two marked pedestrian crosswalks were located at each end of the block on Cali Drive. The parties dispute the existence of a crosswalk at the mid-block location near the hospital’s northeast exit.3
As she had done in the past when leaving the hospital, Chan walked across Cali Drive at the mid-block location almost directly outside the northeast exit door instead of using one of the two crosswalks near each end of the block. According to appellees, it was common for persons leaving the hospital at the northeast exit to cross Cali Drive at mid-block and enter the parking lot by walking through the vehicle entrance/exit. There was no pedestrian gate in the immediate vicinity of the vehicle entrance/exit. The perimeter of the parking lot, other than the pedestrian gates and the sole vehicle entrance/exit, was fenced.
As Chan crossed Cali Drive toward the parking lot, James Budd drove his car out of the parking lot exit, turned left onto Cali Drive, and struck Chan. Chan died from her injuries.
Appellees sued Budd and Budd’s employer, Siemens Medical Solutions USA, Inc. (“Siemens”), asserting claims for wrongful death and negligence. Siemens designated Harris County and HNMC as responsible third parties. As to HNMC, Siemens alleged that the hospital failed to take adequate measures to prevent ingress and egress to and from Cali Drive, encouraged pedestrians to approach and cross Cali Drive at unsafe locations, and failed to advise pedestrians on HNMC’s property of known risks existing on and near the premises. These risks, according to Siemens, facilitated the unsafe pedestrian conditions existing when Chan crossed Cali Drive and proximately caused Chan’s death.
Appellees then added HNMC as a named defendant, alleging that HNMC was negligent in:
• failing to structure its premises surrounding Cali Drive, including its parking lots and access points, in a reasonably safe design to ensure the safe entry and exit of pedestrians to and from Cali Drive;
• failing to install barriers to bar crossing Cali Drive at unsafe locations;
• failing to post any signage near the subject crosswalk directing pedestrians to alternate locations to cross Cali Drive; and
• failing to warn of the alleged known dangerous conditions at the location.
HNMC moved for summary judgment on the ground that the Texas Workers’ Compensation Act (TWCA) barred appellees’ claim. The trial court denied this motion on February 13, 2017. On April 5, 2018, HNMC also moved for summary judgment on the ground that HNMC owed no legal duty to Chan as a pedestrian in a public street; however, the trial court did not rule on this motion.
Trial on the merits began on May 7, 2018. After appellees rested, appellants moved for directed verdict asserting (1) the TWCA barred Chan from relief and (2) HNMC did not owe a duty to Chan. The trial court denied the motion, and Siemens began its case-in-chief. After Siemens rested, HNMC again moved for directed verdict on the same grounds: the TWCA barred Chan from relief and HNMC did not owe a duty to Chan. The trial court denied the motion.
The jury found that the negligence of Budd, HNMC, Harris County, and Chan proximately caused Chan’s death. The jury apportioned negligence 40% to Budd, 20% to HNMC, 30% to Harris County and 10% to Chan. The jury awarded a total of $10 million to Chan’s husband and $2.5 million to each of Chan’s sons. On June 11, 2018, HNMC filed a motion for judgment notwithstanding the verdict, arguing that Chan’s claim was barred by the TWCA and that it did not owe a duty to Chan. The trial court signed a final judgment on July 2, 2018, incorporating the jury’s findings. After the court signed its judgment, appellees settled with Budd and Siemens and filed a release of judgment as to them, leaving only the judgment against HNMC. On August 1, 2018, HNMC filed a motion to set aside judgment and for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c).
HNMC timely filed its appeal and seeks either the rendition of a take-nothing judgment or a new trial.
A. TEXAS WORKERS COMPENSATION ACT
With the exception of instances of intentional acts or gross negligence, recovery of workers’ compensation benefits is “the exclusive remedy” for an employee covered by workers’ compensation insurance or for a legal beneficiary against the employer, or an agent or employee of the employer, for the death or work-related injury sustained by the employee. See Tex. Lab. Code Ann. § 408.001(a).
In its first issue, HNMC argues that its subscription to statutory workers’ compensation coverage bars appellees’ claims. In the trial court, HNMC argued that the TWCA barred Chan from relief in two motions for summary judgment, a motion for directed verdict, a motion for judgment notwithstanding the verdict (JNOV), and a motion for new trial. However, while HNMC points us to the denial of its motion for JNOV in a single footnote, HNMC’s argument in its brief addresses only the trial court’s denial of its summary judgment motion on the basis that the TWCA barred Chan from relief. HNMC’s conclusion states “Summary judgment should have been granted to [HNMC] on February 13, 2017. The motion was denied.”
Generally, the denial of summary judgment cannot be reviewed on appeal. Cincinnati Life Ins. v. Cates, 927 S.W.3d 623, 625 (Tex. 1996). Thus, when a motion for summary judgment is denied by the trial judge and the case is tried on the merits, “[t]he party’s remedy is to assign error to the trial court’s judgment ultimately rendered following trial on the merits.” United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Because HNMC challenges the denial of summary judgment directly and fails to assign error to the trial court’s judgment, the denial of its motion for new trial, or the denial of its JNOV, we overrule its first issue. Id.
In its second issue, HNMC argues that it owed no duty to ensure Chan’s safety while she crossed the public roadway. HNMC and Chan dispute whether this is a premises liability case or a general negligence case. That issue is inconsequential because the initial inquiry under either theory is whether a duty exists, and both sides agree on the body of law governing the duty questions presented. Furthermore, as noted below, the case was submitted to the jury with an instruction on general negligence only, and HNMC waived any complaint as to the theory submitted to the jury because it invited the instruction. For the reasons detailed below, we conclude that HNMC owed Chan a duty.
1. STANDARD OF REVIEW
The existence of a duty is generally a question of law, and that determination is made from the facts surrounding the occurrence in question. Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); see Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). When the issue on appeal is a question of law, we exercise de novo review. See El Paso Nat’l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). However, a jury question can arise when the facts involving the duty are in dispute. See Pagayon, 536 S.W.3d at 503–04; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). When reviewing error under a de novo standard, we conduct an independent analysis of the record to arrive at our own legal conclusion. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998); Rieves v. Buc-ee’s Ltd., 532 S.W.3d 845, 850 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
2. APPLICABLE LAW
To prove an action for negligence, the plaintiff must establish that the defendant had a legal duty. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009); see Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex. 2006) (per curiam) (noting that “liability cannot be imposed if no duty exists.”). A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987) (“Liability is grounded in the public policy behind the law of negligence which dictates every person is responsible for injuries which are the reasonably foreseeable consequence of his act or omission.”), superseded by statute on other grounds, Tex. Alco. Bev. Code Ann. § 2.02, as recognized by F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 684–85 (Tex. 2007). “Although premises liability is itself a branch of negligence law, it is a ‘special form’ with different elements that define a property owner or occupant’s duty with respect to those who enter the property.” Occidental Chem. Co. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (quoting W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)); see also Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975) (“The duty of reasonable care is owed to an invitee.”).
The general rule is that a property owner, such as HNMC, has no duty to ensure the safety of a person who leaves the owner’s property and suffers injury on an adjacent public roadway, or to ensure that person’s safety against the dangerous acts of a third party. See Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 706 (Tex. App.—Fort Worth 1998, pet. denied); Dixon v. Hous. Raceway Park, Inc., 874 S.W.2d 760, 762–63 (Tex. App.—Houston [1st Dist.] 1994, no writ) (noting that property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways). This is because a premises owner’s duty to invitees generally emanates from the owner’s control over the occupied premises and therefore applies only to hazards existing on those premises; the duty does not extend beyond the limits of the premises owner’s control. See Dixon, 874 S.W.2d at 762 (citing Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938)). However, the general rule is subject to certain exceptions. A premises owner assumes a duty of care if it: (1) agrees or contracts, either expressly or impliedly, to make safe a known, dangerous condition of real property, see Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997); (2) creates the dangerous condition, see Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942); (3) assumes actual control over the adjacent property, see Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993); or (4) knows about, but fails to warn of, an obscured danger on land directly appurtenant to the premises owner’s land. See Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 615 (Tex. 1950).
In determining whether a common-law negligence duty exists, we consider the risk, foreseeability, and likelihood of injury balanced against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing this burden on the defendant. Pagayon, 536 S.W.3d at 503–04; Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). In weighing these factors, we first address risk, foreseeability, and likelihood of injury.
In addressing risk of injury, we also review whether a party had superior knowledge of the risk or a right to control the actor who caused the harm. See Golden Spread Council, Inc. # 562, Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290–91 (Tex. 1996); Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993) (noting that “questions of duty have turned on whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists”).
As evidenced by the pattern of similar occurrences, the risk to a pedestrian crossing the street from HNMC’s building to its parking lot, at the same place on Cali Drive where Chan was struck, was significant. The record indicates that HNMC had superior knowledge of the risk because HNMC was aware that Harris County abandoned the crosswalk where Chan was struck prior to Chan’s injury.4 Harris County stopped repainting the stripes marking the crosswalk on Cali Drive, and there were no warning signs or other indications that the crosswalk where Chan was injured was unsafe.
The risk was increased by the design of HNMC’s premises on both sides of the street. A traffic engineer testified at trial that in designing a safe parking lot, pedestrian traffic patterns and habits should be considered. Two engineers testified that when presented with alternative routes, pedestrians will take the quickest route to a destination. It is undisputed that the parking lot vehicle exit/entrance and the northeast exit/entrance of HNMC’s building—the entrance/exit used by Chan—were connected by the abandoned crosswalk and provided the quickest way for individuals leaving HNMC’s building through the northeast door to reach HNMC’s parking lot across Cali Drive. It is further undisputed that HNMC’s design included a concrete pad on both sides of the street from the sidewalk to the curb, directly aligning with the abandoned crosswalk on opposite sides of the street. These concrete areas on both sides of the street aligned with the faded but marked abandoned crosswalk where Chan was killed. This created a risk that a pedestrian would use the crosswalk in the middle of the street closest to their exit from HNMC’s building. The photographs in the record indicate that, although faded, the markings were clearly visible and would appear to a pedestrian as marking a crosswalk on Cali Drive where one could cross the street.
In addition to the exit from the building, the design of the parking lot increased the risk to pedestrians. HNMC placed a sign at the vehicle exit of the parking lot, which partially obstructed the drivers’ right-side view to that side of the street while the pedestrians crossed to a driver’s left side in the crosswalk used by Chan. Because of the location of HNMC’s sign (to the right of vehicles exiting the parking lot) restricting drivers’ visibility, the proximity of the marked crosswalk to the cars exiting the lot, the lack of signs warning drivers of a crosswalk apart from the faded markings on the road, and the visibility of faded crosswalk markings for pedestrians on HNMC’s property, we conclude that there was a high risk of injury.
The most important factor to consider is the foreseeability of the risk. See City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009); Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002); El Chico Corp., 732 S.W.2d at 311. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Foreseeability alone, however, is not enough to create a duty. Kirwan, 298 S.W.3d at 624; Nabors Drilling, 288 S.W.3d at 441.
“Foreseeability does not necessarily equate to predictability.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W. 3d 506, 519 (Tex. 2019). “Rather, ‘foreseeability’ means that the actor should have reasonably anticipated the dangers that his negligent conduct created for others.” Id.
The record indicates that HNMC could have foreseen the injury to Chan. HNMC was aware of multiple incidents in which a pedestrian was either struck or came close to being struck by a vehicle while using the abandoned crosswalk in the middle of Cali Drive. HNMC’s CEO testified that in most of those incidents, the records did not reflect whether they occurred at the crossing Chan used on Cali Drive or somewhere else along Cali Drive. However, the narratives of those occurrences conclusively demonstrate that HNMC was aware of similar incidents involving vehicles turning left from the parking lot and pedestrians using the same crosswalk.
On December 30, 2008, Michael Barreda, a nurse employed by HNMC, was struck by a vehicle turning left out of the parking lot while Barreda attempted to cross Cali Drive at the same location where Chan was struck.5 On September 28, 2010, Terry Anderson, the director of plant operations for HNMC, wrote the following in a letter to the commissioner of Precinct 4 for Harris County:
On 9.21.2010, a hospital employee attempted to cross Cali Drive on foot to reach the East Parking Lot. Another close call occurred as the vehicle struck the pedestrian. She suffered injuries but was fortunate to be discharged fairly quickly from the hospital.
You will recall that I wrote to you in late 2008 about a similar incident whereby the pedestrian was one of our nurses who was able to push himself back with his hands from the vehicle that failed to slow down at the Pedestrian Crossing on Cali Drive....
I would appreciate it if you or your delegate would meet briefly with me to review options about this continuous danger facing our patients, visitors, staff and physicians.6
On March 25, 2012, a visitor was hit by a car by the “east employee entrance.” The description of the March 25 event provides that the driver was “in the East lot Gate trying to exit” and that he tried “to pull around [the pedestrian.]” Based on the description of Cali Drive in the record, this could have only occurred at the location where Chan was hit because there was no other place on Cali Drive where a driver would “pull around” a pedestrian that was near the employee east doors. Finally, a doctor was struck by a vehicle while attempting to cross in the “middle” of Cali drive on November 2, 2010, when a driver “was waiting [for] others vehicle [sic] to pass so I can turn left ....”
Based on these occurrences, of which HNMC was undisputedly aware of, we conclude that the foreseeability of injury was high, as evidenced by the pattern of similar occurrences, the documentation of the incidents, and the communications from Anderson. See McKenzie, 578 S.W.3d at 519; Walker, 924 S.W.2d at 377.
c. LIKELIHOOD OF INJURY
The likelihood of injury is also high because it is common for serious and life-threatening injuries to occur when a pedestrian is struck by a moving vehicle. Having concluded that the risk, foreseeability, and likelihood of injury were high, we balance those factors against the social utility of HNMC’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing this burden on HNMC. See Pagayon, 536 S.W.3d at 503–04.
d. SOCIAL UTILITY OF HNMC’S CONDUCT
HNMC does not argue on appeal—nor did it argue in the trial court—that its conduct had any social utility, and the record contains no evidence or argument as to whether HNMC’s conduct had any social utility. We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions.”); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”); Barham v. Turner Const. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (“[A]n appellant has the burden to show that the record supports contentions urged ....”); see also Miller v. Miller, No. 14-17-00293-CV, 2018 WL 3151241, at *14 (Tex. App.—Houston [14th Dist.] June 28, 2018, no pet.) (mem. op.) (“This court has no duty to search a voluminous trial record to determine whether an assertion of reversible error is valid.”).
e. MAGNITUDE OF THE BURDEN OF GUARDING AGAINST THE INJURY
In HNMC’s response to Chan’s motion for en banc reconsideration, HNMC argues that “the burden on [HNMC] of preventing the harm was—and would be—unacceptably high.” HNMC bases this argument on the fact that it did not control the road. However, HNMC did not present this argument in its appellate brief or at trial, and thus, we do not consider it here. See Cochran Invests., Inc. v. Chicago Title Ins., 550 S.W.3d 196, 202 (Tex. App.—Houston [14th Dist.] 2018) (“We do not address Chicago Title’s argument regarding the residential sales contract’s savings clause because this argument was not raised in Chicago Title’s appellate brief and was asserted for the first time in its motion for rehearing en banc.”), aff’d, 602 S.W.3d 895 (Tex. 2020); AVCO Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (supp. op. on reh’g) (“Generally, we do not base our rulings on arguments raised for the first time on rehearing.”); see also Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (“We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.”).
Furthermore, we note that in the trial court, Chan and Siemens argued that HNMC could have guarded against injury by, among other actions, warning pedestrians not to cross at the abandoned crosswalk or by sending an email to its employees informing them of the risks associated with the abandoned crosswalk. Chan further argued that HNMC had control of the premises on both sides of the street connected by the abandoned crosswalk. HNMC did not present any argument disputing that these actions could have guarded against injury or that they constitute an unacceptably high burden.
We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, 171 S.W.3d at 338; Grimm, 864 S.W.2d at 163; Barham, 803 S.W.2d at 740.
f. CONSEQUENCES OF PLACING THIS BURDEN ON HNMC
In HNMC’s response to Chan’s motion for en banc reconsideration, HNMC argues that placing this burden on HNMC would result in “substantial liability for [premises owners for] injuries that occur in a public roadway over which the landowner has no control or ... to warn of commonly known risks for which the warnings are likely ineffective.” Again, HNMC did not present this argument in its appellate brief, and we will not consider it. See Cochran Invests., 550 S.W.3d at 202; AVCO Corp., 251 S.W.3d at 676.
Nevertheless, we note that HNMC did not argue or present any evidence in the trial court that a warning sign or an email would have been ineffective at guarding against injury, nor does HNMC point us to anything in the record supporting this assertion or addressing the possible consequences of placing this burden on HNMC. Second, it is undisputed that HNMC owns the premises on both sides of the street, and Siemens argued at trial that, as a result, HNMC has control over the entry points between the parking lot and its building, as well as the sidewalks. For the reasons detailed above, we disagree with HNMC’s characterization that the risk here was “commonly known.”
We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, 171 S.W.3d at 338; Grimm, 864 S.W.2d at 163; Barham, 803 S.W.2d at 740.
Balancing the factors as presented, we conclude that, under the facts of this case, HNMC owed a duty as a matter of law to use reasonable care and avoid foreseeable injuries to others by instructing pedestrians, such as Chan, not to cross Cali Drive in the crosswalk between HNMC’s east parking lot and HNMC’s building. See Pagayon, 536 S.W.3d at 503 (“[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.”); El Chico Corp., 732 S.W.2d at 311 (“If a party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.”) (quoting Buchanan, 159 S.W.2d at 110); Renfro Drug Co., 235 S.W.2d at 615 (“Where an obscured danger exists on land directly appurtenant to the land owned or occupied, and where that danger is near a place where invitees enter and exit the landowner’s property, the owner or occupier owes a duty to those invitees entering and exiting to warn of the danger.”); Parking, Inc. v. Dalrymple, 375 S.W.2d 758, 762–63 (Tex. App.—San Antonio 1964, no writ) (holding that it could not be concluded as a matter of law that landowner did not owe a duty to make potential entrances and exits safe and to warn of obscured danger present in the route connecting parking lot to movie theater, because it was reasonably foreseeable that patrons would attempt to use route to cross directly to movie theater); see also United Rentals N. Am., Inc. v. Evans, 608 S.W.3d 449, 461 (Tex. App.—Dallas 2020, pet. filed) (“[E]ven in the absence of a specific legally prescribed duty, there exists a general duty applicable to all to exercise reasonable care to avoid foreseeable injury to others.”); Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.—Eastland 2002, pet. denied) (“Each person has a general duty to exercise reasonable care to avoid foreseeable injury to others.”); Nguyen v. Sephora USA, No. 14-13-01017-CV, 2014 WL 4202538, at *2 (Tex. App.—Houston [14th Dist.] Aug. 26, 2014, no pet.) (mem. op.) (“The most basic common-law duty is ‘the general duty to exercise reasonable care to avoid foreseeable injury to others.’ ” (quoting El Chico, 732 S.W.3d at 311)).
In their dissent, our colleagues rely on opinions addressing injuries which occurred on public roadways where the injured party entered or exited adjacent property allegedly owned or controlled by the property owner. However, those cases are distinguishable from the facts before us.
In Hirabayashi v. N. Main Bar-B-Q, Inc., an appeal from a summary judgment ruling, a patron parked across the street from a restaurant, in a lot not owned by the restaurant. Hirabayashi, 977 S.W.2d at 705. Upon leaving the restaurant to go back to his car, the patron crossed the middle of the street, rather than using “the crosswalk farther down the block,” and was hit by a car. Id. at 706. The patron sued the restaurant, alleging negligence for operating a business without adequate parking, creating an unreasonable risk of harm by not providing for a crosswalk or light to be placed in the street, and failing to warn of the dangerous nature of the roadway in front of the business. Id. The restaurant argued that it owed no duty to someone crossing the middle of a busy street, and the Fort Worth court of appeals agreed. Id. at 706-07. The appellate court held that none of the four “assumed duty” exceptions applied for various reasons, including because the restaurant did not “create a dangerous condition in the roadway.” Id. at 707.
In Cabrera v. Spring Ho Festival, Inc., a festival attendee left the festival grounds to cross an adjacent street to reach the lot where she was to be picked up. See Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at *3 (Tex. App.—Austin Aug. 20, 2010, no pet.) (mem. op.). As she crossed the street, she was struck and killed by a vehicle. Id. Her parents sued the festival operator, alleging that the operator was negligent “in failing to choose a safe location for the festival, failing to provide adequate procedures for the safe ingress and egress of festival attendees, [and] failing to provide adequate on-site parking.” Id. The operator moved for summary judgment, arguing that it owed the deceased no duty at the time of the accident. Id. The Austin court of appeals agreed. Because the accident did not occur on the festival premises, and because the festival operator had no right to control traffic or otherwise occupy the roadway, the court held that the festival operator owed no duty to ensure the attendee’s safety as she crossed the street. Id. at *3.
Unlike the property owners in Hirabayashi and Cabrera, HNMC owns the premises on both sides of Cali Drive; HNMC’s premises on both sides of Cali Drive influenced how pedestrians and vehicles interacted with each other at the abandoned crosswalk; and HNMC was aware of an increased risk of harm posed by vehicles exiting its parking lot to pedestrians using the abandoned crosswalk.
Tkatch v. Grand Pky. I & II Acquisition Grp.; Garrett v. Hous. Raceway Park, Inc.; and Lawson v. B. Four Corp. are distinguishable because the property owners in those cases did not have notice of similar incidents. Based on the particular facts in each case, the foreseeability factor weighed against the existence of a duty. Cf. Tkatch v. Grand Pky. I & II Acquisition Grp., Ltd., No. 01-96-01355-CV, 1997 WL 694919, at *4 (Tex. App.—Houston [1st Dist.] Oct. 30, 1997, no pet.) (not designated for publication) (“Like the premises owners in Naumann and Lawson, it was reasonable for AGL to expect that motorists such as Wheeler would exercise due care in exiting their premises and entering the highway safely.”) (emphasis added); Garrett v. Hous. Raceway Park, Inc., No. 14-94-00929-CV, 1996 WL 354743, at *2 (Tex. App.—Houston [14th Dist.] June 27, 1996, no writ) (not designated for publication) (“The risk and foreseeability of accidents in front of the Raceway, therefore, is no greater than along other portions of the highway that are not adjacent to the Raceway.”); Lawson v. B Four Corp., 888 S.W.2d 31, 35 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“[W]e find that it was not reasonably foreseeable that a driver exiting Quality’s premises and locking the cable behind him would park his truck across three lanes of traffic.”).7
Here, there was evidence in the record that HNMC was aware of prior incidents resulting in injuries, and based on its investigations, requested that changes be implemented to prevent further incidents. This evidence is lacking in the authority cited by the dissent. One of the distinguishing factor in the cases cited by the dissent is the lack of notice to the property owners, which weighs against the existence of a duty. See Hillis v. McCall, 602 S.W.3d 436, 440–42 & n.5 (Tex. 2020). Furthermore, Cali Drive is not merely adjacent to HNMC’s premises, but rather it connects HNMC’s building to its parking lot. Cf. Cabrera, 2010 WL 3271729 at *3–4; Hirabayashi, 977 S.W.2d at 706–08; Lawson, 888 S.W.2d at 32–35; Dixon, 874 S.W.2d at 762–63; Naumann, 749 S.W.2d at 190–92; Tkatch, 1997 WL 694919 at *4.
We also disagree with the dissent’s characterization that the danger here is only inattentive drivers. Instead, HNMC’s premises increased the danger to pedestrians because pedestrians crossed Cali Drive at the abandoned crosswalk where there are no signs alerting drivers that pedestrians will be crossing there; the abandoned crosswalk is a short distance to the left-hand side of drivers exiting HNMC’s parking lot; and the right-hand side view of drivers is partially obstructed when they exit HNMC’s parking lot. HNMC knew that an increased risk to pedestrians crossing Cali Drive existed at the abandoned crosswalk and had control of the premises on both sides of Cali Drive. See Buchanan, 159 S.W.2d at 110 (“[I]t may be said generally ... that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.”); see also Tkatch, 1997 WL 694919 at *2 (“[E]very person has a duty to take affirmative action to control or avoid increasing the danger from another’s conduct which the actor has at least partially created.”) (citing El Chico Corp., 732 S.W.2d at 312).
We overrule HNMC’s second issue.
C. JURY CHARGE
In its third issue, HNMC argues that the case was submitted to the jury under an erroneous theory of liability—general negligence—when it should have been submitted under a more specific premises-defect theory.
1. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s decision on jury charge issues for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam); Sloane v. Goldberg B’Nai B’Rith Towers, 577 S.W.3d 608, 616 (Tex. App.—Houston [14th Dist.] 2019, no pet.). A trial court abuses its discretion in refusing to submit a requested question or instruction if the pleadings and evidence raise the issue. Sloane, 577 S.W.3d at 616. In addition, a trial court’s error in refusing a request or instruction is reversible error only if the refusal probably caused the rendition of an improper verdict. Tex. R. App. P. 44.1(a)(1); Sloane, 577 S.W.3d at 616. To determine whether an alleged error in the jury charge is reversible, we consider the pleadings, the evidence at trial, and the charge in its entirety. Sloane, 577 S.W.3d at 616.
In the context of jury charge issues, a defendant is under no obligation to object to a plaintiff’s incorrect submission. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481–82 (Tex. 2017). But, the invited error doctrine holds that “a party cannot complain on appeal that the trial court took a specific action that the complaining party requested.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (per curiam); see W&T Offshore Inc. v. Meyers, 577 S.W.3d 247, 252–53 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (op. on reh’g). Thus, a party cannot encourage a trial court to submit a jury question in a particular form and then contend on appeal that the charge was erroneous. See United Scaffolding, 537 S.W.3d at 482 (“We have acknowledged that a defendant may invite error and waive its argument on appeal when it persuades a trial court to adopt a jury charge that it later alleges supports an improper theory of recovery.”); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775 (Tex. 2010) (“[Appellant] cannot now obtain a reversal on grounds that the jury should have decided the facts under a theory of liability that [appellant] itself persuaded the trial court not to submit to the jury.”); Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (“Parties may not invite error by requesting an issue and then objecting to its submission.”); Daily v. Wheat, 681 S.W.2d 747, 757 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“It is well settled that a party cannot complain on appeal when instructions given are substantially the same as those requested by appellant.”).
In its third issue, HNMC argues that the “submission of this case to the jury with a broad-form negligence question was harmful error.” HNMC further asserts that the case should have been submitted under a more specific premises defect theory. Appellees asserts that HNMC invited the alleged jury charge error; alternatively, appellees claim that the jury was properly instructed. We agree that any alleged error was invited by HNMC.
Before trial, HNMC submitted a proposed jury charge that addressed the issue of liability under a broad-form general negligence question. During the charge conference, Siemens proposed submitting a premises-liability theory to the jury as to HNMC. However, HNMC opposed Siemens’ request, stating, “I think that the jury charge as a broad form negligence charge is appropriate, Your Honor.” Chan joined HNMC’s request for a broad submission, and the trial court rejected Siemens proposed charge and accepted HNMC and Chan’s general negligence charge. The trial court then submitted the question of liability to the jury as a general negligence question.
HNMC agreed to the charge as submitted at trial, but now complains of the submission of the charge. We conclude that HNMC cannot complain on appeal that the jury instruction was erroneous because HNMC itself requested that the trial court submit a general negligence question instead of a specific premises-liability question. See Del Lago Partners, 307 S.W.3d at 775. We overrule HNMC’s third issue.
D. SUFFICIENCY OF THE EVIDENCE
In its fourth issue, HNMC argues that the evidence is legally and factually insufficient to support the jury’s finding that HNMC breached a duty it owed to Chan and that appellees suffered damages resulting from the breach.
1. STANDARD OF REVIEW & APPLICABLE LAW
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798, 803 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See City of Keller, 168 S.W.3d at 827. Our task is to determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. As long as the evidence at trial “would enable reasonable and fair-minded people to differ in their conclusions,” we will not substitute our judgment for that of the factfinder. See id. at 822. The factfinder is the only judge of witness credibility and the weight to be given to testimony. See id.
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. See id. at 407. We will set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
An appellant may not challenge a trial court’s conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). “If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.” Id.
First, we note that HNMC does not provide us with the standard of review or applicable law for determining its factual sufficiency challenge, and the argument in its brief only addresses legal sufficiency. As such, we conclude that HNMC’s factual sufficiency challenge is waived. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.”); see also Duke Realty Ltd. P’ship v. Harris Cnty. Appraisal Dist., No. 14-15-00543-CV, 2016 WL 3574666, at *2 (Tex. App.—Houston [14th Dist.] June 30, 2016, no pet.) (mem. op.) (concluding that appellant’s factual sufficiency challenge was waived because appellant “did not provide any discussion of the appropriate standard of review for factual sufficiency challenges, any citation of appropriate legal authority, or any analysis applying the appropriate legal authority to the facts”). Likewise, HNMC does not provide us with citations to the relevant applicable law or substantive analysis regarding its legal sufficiency challenge as to causation. Thus, this argument is also waived. See Tex. R. App. P. 38.1(i); Canton-Carter, 271 S.W.3d at 931; see also Tchernowitz v. The Gardens at Clearwater, No. 04-15-00716-CV, 2016 WL 6247008, at *1 (Tex. App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.) (“When an appellant fails to cite applicable authority, fails to provide relevant citations to the record, or fails to provide substantive analysis for an issue presented in the brief, nothing is presented for our review.”)
As to HNMC’s legal sufficiency challenge regarding its breach of a duty, HNMC’s main complaint is that appellees did not designate any experts to testify concerning HNMC’s alleged breach. However, there is no requirement to only consider expert evidence presented by the plaintiffs’ own experts. To the contrary, in a legal sufficiency review, we look at all evidence that supports the verdict, regardless of its source. See City of Keller, 168 S.W.3d at 823.
Before trial, in its designation of experts, appellees cross-designated all expert witnesses designated by “any other party to this proceeding.” During trial, Siemens’s expert witnesses detailed HNMC’s negligence. One such witness was Joseph Blaschke, a consulting engineer specializing in the “areas of highway design and traffic engineering.” Blaschke testified concerning some of the fundamentals of parking lot design. First, he said that it is inevitable that pedestrians and vehicles will intermingle, and that pedestrian safety must be prioritized. He added that pedestrians will generally take the most direct route possible. Blaschke also claimed that it is important to reduce the conflict points where vehicles and pedestrians interact. He stated one of the best ways to accomplish this is by routing vehicles through one location and moving the pedestrians through another location; “Good example, only openings in fences where pedestrians should go.”
According to Blaschke, the problems with HNMC’s design of the parking lot began with the “inherently risky design” of having a public road separating the facility from the parking lot. Blaschke next criticized the narrow, but long, design of the parking lot because it “necessitates mid-block crossings.” And according to Blaschke, mid-block crossings are risky because drivers are accustomed to encountering pedestrians at intersections; drivers are not prepared to encounter pedestrians in the middle of the block. Blaschke pointed out that the parking lot was surrounded by fencing, and yet HNMC failed to create a pedestrian gate. The only way for pedestrians to enter and exit the parking lot was through the driveway that is intended for, and used by, vehicles. Blaschke testified that this problem was exacerbated by the fact that, for unknown reasons, other potential vehicle driveways were closed. This resulted in a single driveway that acted as an access point for approximately 85% of the vehicles in the parking lot.
Deputy Sean Sargent testified that the stairs leading out of the building do not line up with the crosswalks; instead, the stairs line up with the vehicle driveway to the parking lot. As Jones testified, the other crosswalks were “quite a ways” away. Blaschke opined that HNMC could have installed bushes or an obstruction to prevent pedestrians from crossing in this unsafe location. However, instead of doing so, HNMC installed concrete slabs on both sides of the street in 2011 that aligned with the abandoned crosswalk used by Chan and other pedestrians. Kwasniak testified that the concrete slabs further led pedestrians to believe this was a safe area to cross. Blaschke and Kwasniak also testified concerning signs placed on the northside of the vehicle driveway. Allegedly, these signs obstructed the view of drivers and led to drivers focusing their attention northward to scan for southbound vehicles, instead of focusing southward where the pedestrians were crossing the street after descending the stairs.
Puthoff, CEO of HNMC, confirmed that several other “misses and scares” had occurred on Cali Drive prior to March 17, 2015. HNMC knew that the crosswalk where Chan crossed was no longer maintained by the County, and knew pedestrians were still crossing at that location, but did nothing to warn pedestrians not to cross there, despite its knowledge of multiple close calls involving pedestrians and vehicles exiting its parking lot.
Blaschke testified that HNMC could have taken any number of steps to address the safety concerns: closing the northeast entrance or using it only as an emergency exit, remove the steps, installing a grassy area, fencing, or signs to instruct pedestrians to cross at the designated areas, and/or installing a pedestrian gate so that pedestrians and vehicles do not share an access point. According to Blaschke, Chan’s accident “would not have happened” if any of these modifications were enacted. Kwasniak stated that having a pedestrian gate would funnel more pedestrians away from the conflict point, leading to fewer injuries overall.
Reviewing the evidence in the light most favorable to the verdict, we conclude there was legally sufficient evidence to support the jury’s verdict. See id. We overrule HNMC’s fourth issue.
E. EVIDENCE OF SIMILAR OCCURRENCES
In its fifth issue, HNMC argues that the trial court erred by admitting evidence related to other pedestrian-vehicle incidents and in denying its motions for mistrial based on the admission of the evidence.
1. EVIDENTIARY CHALLENGE
a. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s admission of evidence under the abuse-of-discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam); Katy Int’l, Inc. v. Jiang, 451 S.W.3d 74, 93 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its decision is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “If a party later permits the same or similar evidence to be introduced without objection, the error in the admission of testimony generally is harmless and is waived, unless the party obtains a running objection.” Katy Int’l, 451 S.W.3d at 94 (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004)); see Bhatia v. Woodlands N. Hous. Heart Ctr., PLLC, 396 S.W.3d 658, 669 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Furthermore, a party may not complain on appeal that the opposing side’s evidence was improperly admitted if the party introduced the same or similar evidence. Harris Cnty. Flood Controld Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A party may open the door to the admission of otherwise objectionable evidence through a witness’s testimony that conveys a false impression. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000).
HNMC complains that the trial court erred by admitting testimony and evidence of prior incidents involving pedestrian encounters with vehicles around HNMC’s perimeter.
At trial, HNMC engaged in a line of questioning that implied Cali Drive was safe because despite 30,000 employees crossing that street every year, there was a relative absence of incidents. HNMC’s counsel then asked Blaschke, “So we have two incidents over a seven-year period which, even with my terrible math, is going to be 210,000 people crossing that street during that period of time?” Bassin, counsel for Siemens, asked to approach the bench and argued:
I think the door has clearly been opened now for other similar incidents ... There are four other [incidents] that are clearly in the area that are left-hand turns on to Cali Drive w[h]ere pedestrians were hit crossing to and from the hospital. And there is now an implication to the jury that there is [sic] only two. That is not accurate. (RR11 119, 121).
The trial court agreed and admitted the documents pertaining to the other four incidents; HNMC objected, alleging that “[i]f this evidence comes in right now ... then it will destroy all credibility I have with the jury.... [and] it will be highly prejudicial.” By giving the impression that there had been only two incidents over a seven-year period on Cali Drive, the trial court could have reasonably concluded that HNMC opened the door to rebuttal evidence to refute this testimony. See id. Based on the record before us, we cannot conclude that the trial court abused its discretion when it found that HNMC opened the door to evidence pertaining to the prior incidents. See id.; Downer, 701 S.W.2d at 241–42.
HNMC also argues that the trial court erred in admitting two documents that Siemens used during opening statements. After discussion, the trial court excluded HNMC’s plant-operations records but admitted two letters between the director of HNMC’s plant operations and Harris County. One of the letters described the Barreda incident in 2008 and a collision involving a pedestrian in September 2010 and requested a meeting to address the continuous danger on Cali Drive; the other letter, in response to HNMC’s letter regarding pedestrian/patient/employee safety, identified the actions Harris County was implementing to improve pedestrian safety, and included recommendations Harris County made to HNMC to improve pedestrian safety on Cali Drive, which included the removal and relocation of parking lot access points. However, HNMC offered and requested the admission of the two complained of letters as exhibits, and the trial court admitted them into evidence. Because HNMC moved for the admission of these letters into evidence, HNMC cannot now complain on appeal about this evidence, and thus, we reject this argument. See Taub, 502 S.W.3d at 326.
HNMC avers that the trial court erred when it admitted evidence of prior incidents involving vehicles and pedestrians on Cali Drive, asserting documents evidencing the prior incidents are hearsay and were not properly authenticated.
Before trial, HNMC filed a motion to exclude the entire file of HNMC’s plant operations on multiple bases: that the entire file is hearsay, unauthenticated, and that the prior incidents did not occur at the same location as Chan’s death. A pre-trial hearing was held outside the presence of the jury. The trial court sustained HNMC’s hearsay objection and excluded the documentation of prior incidents, but the trial court admitted the two letters from HNMC to Harris County.8 HNMC’s hearsay complaint concerns the documentation of four prior incidents involving pedestrians and vehicles on Cali Drive. As noted above, the trial court admitted documents of these prior similar incidents after ruling that HNMC opened the door to admission of the evidence.
“Evidence that is otherwise inadmissible may become admissible when a party opens the door ... by leaving a false impression with the jury that invites the other side to respond.” Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 787 (Tex. 2019) (per curiam) (quoting Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009)); see also Sw. Electric Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (“A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character.” (quoting McInnes v. Yamaho Motor Corp., 673 S.W.2d 185, 188 (Tex. 1984))). “ ‘Opening the door’ or inviting testimony that would otherwise pertain to an inadmissible subject matter does not mean that such testimony is necessarily invited into evidence in any form, including hearsay.” Gabriel v. Lovewell, 164 S.W.3d 835, 842–43 & n.3 (Tex. App.—Texarkana 2005, no pet.). “However, where such testimony pertains to the same subject matter and is directly contrary to earlier testimony, it is admissible, including hearsay.” Id. at 842–43.
Here, HNMC opened the door to the evidence of similar incidents because HNMC implied that there were only two prior incidents on Cali Drive involving pedestrians during a seven-year period. The documentation of similar incidents admitted by the trial court was directly contrary to this false impression and pertained to the same subject matter. Thus, we cannot conclude that the trial court abused its discretion when it admitted documentation of prior similar incidents. See Comm’n for Lawyer Discipline, 587 S.W.3d at 787; Sw. Electric Power Co., 966 S.W.2d at 473; see also Auld, 34 S.W.3d at 906 (“If the trial court did not allow the survey reports into evidence after Horizon’s witnesses testified in this manner, the jury would be left with a false impression that Horizon had not been cited for rendering improper care when, in fact, it had.”); Hulsey v. Attalla, No. 01-18-00180-CV, 2019 WL 3484082, at *14 (Tex. App.—Houston [14th Dist.] Aug. 1, 2019, no pet.) (mem. op.) (“[O]therwise inadmissible evidence may be admitted to correct a false impression left by the questioning of a witness.”); In re D.A.H., Nos. 13-07-00444-CV, 13-07-00450-CV, 2008 WL 3920772, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 27, 2008, no pet.) (mem. op.) (“[W]hen evidence is necessary to explain a matter ‘opened up’ by the other party, a court may decide to admit evidence that would otherwise be inadmissible.”). We reject HNMC’s argument.
3. MOTION FOR MISTRIAL
HNMC also argues that the trial court abused its discretion by denying its motions for mistrial. During trial, HNMC asserted three oral motions for mistrial. We review a ruling on a motion for mistrial for an abuse of discretion. See Tex. Turnpike Auth. v. McCraw, 458 S.W.2d 911, 913 (Tex. 1970); Petroleum Workers Union of the Repub. of Mex. v. Gomez, 503 S.W.3d 9, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
HNMC argues that the trial court abused its discretion when it overruled its motions for mistrial because the trial court erred in admitting the two letters from HNMC to Harris County. As previously concluded, HNMC itself admitted the two letters into evidence. Thus, we reject this argument.
HNMC also argues that the trial court abused its discretion when it overruled its motions for mistrial because the documentation of prior similar incidents involving pedestrians and vehicular traffic on Cali drive was inadmissible hearsay. However, HNMC did not urge this as the basis for granting any of its motions for mistrial. Thus, this argument has not been preserved for our review. See Tex. R. App. P. 33.1(a); Superbash 2017, LLC v. Fun Fest Ent., 634 S.W.3d 471, 480–82 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see, e.g., United Cab Co., Inc. v. Mason, 775 S.W.2d 783, 785–86 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (concluding that argument was not preserved for appellate review when appellant did not urge the argument in its motion for mistrial); Cain v. Zurich Ins., 426 S.W.2d 575, 578 (Tex. App.—Dallas 1968, no writ) (“Appellant did not move for a mistrial on account of the alleged conduct of counsel and has therefore waived his right to complain thereof.”).
Finally, HNMC has not demonstrated that it was harmed by Siemens’ disclosure of these documents. Assuming, arguendo, that the letters and documents concerning the prior incidents were improperly published, HNMC has failed to demonstrate—and we fail to see—how HNMC was harmed by the allegedly improper publication of the letters and documents concerning the prior incidents. We overrule HNMC’s fifth issue.
We affirm the judgment of the trial court.
EN BANC CONCURRING OPINION
Meagan Hassan Justice
Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.
The majority of this en banc Court concludes HNMC owed Chan a duty of ordinary care and I agree therewith. I write separately to articulate my firmly held view against our dissenting colleague’s analysis concerning duty.
Our dissenting colleague first opines that we have mistakenly disregarded the truth, i.e., that “[t]he unreasonable hazard in this case is the risk posed to pedestrians by inattentive drivers.” Dissenting Op. at 17 (Jewell, J.). This calculated limitation of potential sources of danger is myopically contrary to basic principles of tort law. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (“There can be concurrent proximate causes of an accident. All persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable.”) (citations omitted); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (“There may be more than one proximate cause of an event.”) (citations omitted).1 Further, it also disregards reasonable inferences that support the verdict despite clear instructions to refrain from doing so. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
While I agree that moving cars are a proximate cause of vehicle-pedestrian collisions at the crosswalk in question (and a sine qua non of Chan’s death), the evidence in this case tends to prove several particularized facts that inescapably affect this Court’s conclusions, the trial court’s conclusions, and the jury’s findings (particularly when viewed in the light most favorable to the verdict and when all reasonable inferences in favor thereof are indulged). See id. These facts (and reasonable inferences) include:
(1) there had been a crosswalk at that location;
(2) HNMC knew there had been a crosswalk at that location;
(3) there were previous vehicle-pedestrian collisions at that crosswalk;
(4) HNMC had notice of said vehicle-pedestrian collisions at that crosswalk;
(5) the crosswalk had been abandoned;
(6) HNMC knew the crosswalk had been abandoned;
(7) HNMC at least had reason to know no one provided notice to pedestrians that the crosswalk had been abandoned;
(8) HNMC at least had reason to know that pedestrians were not warned of the danger at that particular crossing area;
(9) HNMC’s employees were “funneled” into a “dangerous zone”;
(10) HNMC knew its employees still used the crosswalk in question;
(11) HNMC knew (or at least had reason to know) that drivers of vehicles “may not see or recognize the risk of pedestrians attempting to cross the street”;
(12) HNMC knew the risk at issue presented “a life safety issue too serious to ignore for the protection of our patients, visitors, staff, and physicians”;
(13) HNMC knew (or at least had reason to know) its employees were exposing themselves to an unreasonable risk when utilizing an abandoned crosswalk where other vehicle-pedestrian collisions had occurred; and (despite the foregoing)
(14) HNMC failed to warn:
• pedestrians that the crosswalk had been abandoned;
• pedestrians not to cross there;
• drivers that pedestrians were present (particularly at a crosswalk HNMC knew (a) was abandoned; (b) pedestrians had no reason to know was abandoned; and (c) was the site of previous vehicle-pedestrian collisions); and
• drivers and pedestrians that the crosswalk at issue was a particularly dangerous area because it had been the site of previous vehicle-pedestrian collisions under materially similar circumstances.
Whether a duty exists is a “question of law for the court to decide from the facts surrounding the occurrence in question.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). We are obliged to credit each piece of the foregoing evidence in support of the judgment if reasonable jurors could have done so and to disregard contrary evidence unless reasonable jurors could not have done so. City of Keller, 168 S.W.3d at 827. The jury heard evidence supporting the court’s judgment that HNMC (1) exercised control over the roadway (when it built two vision-obstructing signs and a concrete pad on the county’s right-of-way) and (2) took one or more affirmative actions with respect thereto that proximately caused Chan’s death. These actions (including, e.g., funneling into a dangerous zone) imposed a duty upon HNMC to use ordinary care to protect pedestrians like Chan from a risk it described as “a life safety issue too serious to ignore for the protection of our patients, visitors, staff, and physicians.” In my view, this concession (in connection with the remaining facts of this case) is sufficient to support the trial court’s implicit post-verdict conclusion that HNMC (1) exposed Chan to a known and significant risk and (2) therefore owed Chan a duty to exercise ordinary care.
The trial court implicitly denied HNMC’s motion for summary judgment and said motion is not the subject of this appeal; therefore the propriety of the trial court deferring to the jury for determinations of disputed fact is not before us. See generally Tex. R. App. P. 38.1(i). Additionally, the trial court properly deferred to the jury concerning fact questions in accordance with this court’s precedents. See Barnes v. Wendy’s Int’l, Inc., 857 S.W.2d 728, 729 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“[W]hether facts giving rise to a duty exist, is a question for the fact finder ....”) (emphasis in original) (citing Fuqua v. Taylor, 683 S.W.2d 735, 737 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)); accord Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 129 (Tex. App.—Austin 1992, writ denied) (“Negligence is a question for the jury when facts are such that the jury could draw an inference either way.”) (citing Lyons v. Paul, 321 S.W.2d 944, 950 (Tex. App.—Waco 1958, writ ref’d n.r.e.)); see also 53 Tex. Jur. 3d, Negligence § 132 (2021) (“In the absence of a law characterizing the actor’s conduct as negligent, the issue whether the actor should have foreseen and prevented the calamity and has, therefore, been negligent is one to be determined by the jury by reference to the facts.”) (citing Tex. & Pac. Ry. Co. v. Murphy, 46 Tex. 356 (1896); Panhandle & S.F. Ry. Co. v. Willoughby, 58 S.W.2d 563 (Tex. App.—Amarillo 1933, writ dism’d)). It is not within our province to eradicate plaintiffs’ victories by viewing the facts in anything less than the light most favorable to the jury’s verdict. Viewed in hindsight, it is simply not extraordinary that a pedestrian was hit by a car at an abandoned crosswalk where other pedestrians had been hit without warnings that the crosswalk (1) had been abandoned or (2) was subject to drivers who did not know there were pedestrians crossing at that particularly dangerous point. See Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 559 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgm’t vacated w.r.m.) (Busby., J.) (“Viewed in hindsight, the operation of these third-party forces in bringing about the harm was not extraordinary; the turnaround process was designed to have third parties follow the schedule Critical Path created.”) (citing Restatement (Second) of Torts §§ 435(2), 442(b) (Am. Law Inst. 1965)); cf. Tex. R. App. P. 56.3 (“In any event, the Supreme Court’s order [concerning settled cases] does not vacate the court of appeals’ opinion unless the order specifically provides otherwise.”). Indulging every reasonable inference in the jury’s favor, HNMC owed Chan a duty to exercise reasonable care.
The strength of my conviction on this issue is only reinforced by the Texas Supreme Court’s clear instructions: “In determining whether a legal duty exists we take into account not only the law and policies of this State, but the law of other states and the United States, and the views of respected and authoritative restatements and commentators.” SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995). The Restatement (Second) of Torts is (at least) a respected and authoritative restatement. Section 449 of the Restatement succinctly summarizes the relevant law: “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Restatement (Second) of Torts § 449 (Am. Law Inst. 1965) (emphasis added); see also id. cmt. a (“It is only where the actor is under a duty to the other, because ... his conduct has created or increased the risk of harm through the misconduct, that he becomes negligent.”). Section 449 has previously been adopted by this court. See Critical Path Res., Inc., 561 S.W.3d at 555;2 Barrick v. CRT Disaster Servs., No. 14-06-00853-CV, 2007 WL 2790386, at *4 (Tex. App.—Houston [14th Dist.] Sept. 27, 2007, no pet.) (mem. op.); accord Hale v. Burgess, 478 S.W.2d 856, 858 (Tex. App.—Waco 1972, no pet.). I believe that under our rules, this court’s previous adoption of section 449 should have been enough to affirm the existence of HNMC’s duty (based on the evidence, the verdict, and all reasonable inferences from the evidence that support the verdict) without requiring en banc review to maintain the uniformity of this court’s precedents. See Tex. R. App. P. 41.2(c).3
Continuing to examine other respected authorities, the Texas Supreme Court has previously cited to the treatise Modern Tort Law. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451 (Tex. 2006). There, the authors observe that this particular “problem is made more difficult when foreseeability is incorrectly applied to both duty and causation. The correct rule is that if it is foreseeable that a third person might conduct himself or herself to the injury of the plaintiff, this may be a foundation for liability.” Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 3:31 (2d ed. 2019) (citations omitted). The authors are familiar with our dissenting colleague’s approach and reject it as incorrect. See id. (“[T]he intervening act of a third person does not relieve the original wrongdoer of liability if the third party’s conduct was a reasonably foreseeable result of the actor’s wrongdoing ... if an independent, illegal, or willful act is of such a nature that it might have been anticipated, the duty arises out of that fact and the original wrongdoer will be liable for the resulting injuries.”);4 see also id. (“Another basis for liability is where the actor’s own affirmative act has created or exposed the plaintiff to a recognizable high degree of risk of harm through such conduct which a reasonable person would take into account.”); Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, The Law of Torts § 125 (2d ed. 2011) (“It is also possible to use the term duty in a radically different way by speaking of duties that are not standards at all. Instead of saying that the defendant is under a duty of reasonable care, a judge could say the defendant is under a duty to keep a lookout or to drive so that he could stop within the range of his vision. This kind of usage is almost always a shorthand expression that really refers to something else.”). A majority of this en banc Court has elected to continue this court’s rejection of the dissent’s approach and I expressly join therewith. See generally Critical Path Res., Inc., 561 S.W.3d at 579-89 (Jewell, J., dissenting).
Finally, the Restatement contains another seemingly relevant point: “If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.” Restatement (Second) of Torts § 321 (Am. Law Inst. 1965); see also Lear Siegler, Inc., 819 S.W.2d at 472 & n.1. While this section is informative and satisfied by reasonable inferences from the jury’s findings, it is not yet the law of the land and a majority of this en banc Court does not rely upon it. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 438 (Tex. 1997) (“This Court has not recognized claims based on Restatement sections 321 ... or 389 .... These sections are particularly ill-suited for application to what are essentially products liability claims because they impose liability even when the manufacturer provides adequate warnings.”).
Our dissenting colleague also opines that “vision-obstructing signs” are “irrelevant to the facts of this case”. Dissenting Op. at 22 (Jewell, J.). This conclusion effectively refuses to credit evidence concerning vision-obstructing signs, presumably on the implied basis that a jury could not have given it any credit at all. However, this argument was waived because it was not briefed.
Our dissenting colleague proceeds to take issue with the majority’s implied conclusion that drivers who turn left will look right when they do so. See id. at 23 (“[A]ppellees contend that drivers will be looking right when turning left, and that the hospital is responsible for guarding against such negligent behavior.”). The majority does not contend HNMC was negligent by preventing such negligence, in large part because the majority never concludes (nor even implies) that looking right when turning left is negligent. Instead, looking right when turning left is required by Texas law. See Tex. Transp. Code Ann. § 545.152 (“To turn left at an intersection or into an alley or private road or driveway, an operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard.”); see also Tex. Dep’t of Pub. Safety, Tex. Driver Handbook at 42-43 (Sept. 2017), https://www.dps.texas.gov/internetforms/forms/dl-7.pdf (“Turning a corner appears to be a simple operation. However, many crashes and confusion in traffic are caused by drivers who do not turn properly .... How to Make a Left Turn .... Look in all directions before starting to turn .... Yield the right-of-way to any vehicle approaching from the opposite direction ... enter[ ] the lane in which you will interfere the least with traffic.”) (emphasis added). The dissent’s conclusion that HNMC “had every right” to expect drivers to “exercise due care” only highlights the correctness of Appellees’ argument.
III. Risk-Utility Analysis
Our dissenting colleague also criticizes the majority for failing to mention that Chan did not expressly invoke the risk-utility test in the trial court and that it “remains unexplained” as to why HNMC would address those issues in its opening brief. Respectfully, I do not believe that a majority en banc opinion needs to explain that when appellants contend the trial court erred, their briefs “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i); see also In re Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *2 (Tex. App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.) (reversing a plaintiff’s judgment under the risk-utility test where plaintiff/appellee only briefed foreseeability). The risk-utility test is utilized by Texas courts (and many others) when analyzing whether a duty was owed. See, e.g., Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex. 1983) (citing Robertson v. LeMaster, 301 S.E.2d 563 (W. Va. 1983); Turner v. Grier, 608 P.2d 356 (Colo. App. 1979)); see also Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 714-15 (Tex. 2003); Greater Houston Transp. Co., 801 S.W.2d at 525 (citing Otis Eng’g Corp., 668 S.W.2d at 312); Russell v. Allstate Ins. Co., No. 07-21-00046-CV, 2021 WL 3857604, at *3 (Tex. App.—Amarillo Aug. 30, 2021, no pet. h.) (mem. op.); In re Ernst, 2011 WL 192654, at *2 (citing Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994)); Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.) (“Appellate courts apply a risk-utility balancing test in determining whether a duty exists under common law.”) (citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998)); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App.—Dallas 1998, no pet.); cf. Gonzales v. O’Brien, 305 S.W.3d 186, 189 (Tex. App.—San Antonio 2009, no pet.); Cohen v. Hoose, No. 09-06-297-CV, 2007 WL 3034938, at *2 n.2 (Tex. App.—Beaumont 2007, no pet.) (mem. op.). Under the circumstances, I believe (1) HNMC’s failure to argue the risk-utility test constitutes briefing waiver and (even if it did not constitute briefing waiver) (2) HNMC failed to satisfy its burden on appeal. I believe both of these conclusions are further supported by the fact that Appellees’ brief cited to Greater Houston Transportation Co. (801 S.W.2d at 525) for the proposition that, “[i]n deciding whether a duty exists, the Court must consider several factors” and said citation contains the risk-utility test.5
To the extent HNMC did not waive this issue, the jury nonetheless heard evidence that it would have been “relatively simple” for HNMC to encourage their employees not to use the crosswalk or exit. We are obliged to credit this piece of evidence that supports the judgment because reasonable jurors could have done so. See City of Keller, 168 S.W.3d at 822. Therefore, the “consequences of placing the burden on the defendant” are low, particularly when measured against the known and substantial risk at issue, i.e., “a life safety issue” HNMC characterized as “too serious to ignore for the protection of our patients, visitors, staff, and physicians.” When combined with the foreseen harms herein, I conclude HNMC owed Chan a duty of ordinary care. See, e.g., Nguyen v. SXSW Holdings, Inc., 580 S.W.3d 774, 795 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (Hassan, J., dissenting) (concluding “there is simply no balance to be had ... [and] Appellees ... had an inescapable duty under the risk-utility test”).
Finally, we are instructed to consider “the views of respected and authoritative restatements and commentators” when determining whether a legal duty exists. See SmithKline Beecham Corp., 903 S.W.2d at 351. Section 291 of the Restatement (Second) of Torts states: “Conduct is not negligent unless the magnitude of the risk involved therein so outweighs its utility as to make the risk unreasonable. Therefore, one relying upon negligence as a cause of action or defense must convince the court and jury that this is the case.” Restatement (Second) of Torts § 291 (Am. Law Inst. 1965). This court first applied section 291’s risk-utility test 49 years ago. See Metal Window Prods. Co. v. Magnusen, 485 S.W.2d 355, 359 (Tex. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.); accord Hendricks v. Todora, 722 S.W.2d 458, 461 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (“Thus the occupier’s duty to protect invitees against the reckless or criminal acts of third persons is determined by whether the risk of harm from such conduct is unreasonable under the circumstances. A risk is unreasonable if it is of such magnitude as to outweigh what the law regards as the utility of the alleged negligent act or omission.”) (citing Restatement (Second) of Torts § 291 (Am. Law Inst. 1965)). This precedent has not been briefed, challenged, or overturned. Therefore, it was binding on the panel and I concur in the granting of en banc reconsideration to maintain the uniformity of this court’s precedents. See Tex. R. App. P. 41.2(c).
EN BANC DISSENTING OPINION
Tracy Christopher Chief Justice
Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.
The panel opinion in this case issued on May 28, 2020, which was over a year ago. The court granted en banc reconsideration in a case that will have no practical extension beyond its own particular set of facts. In doing so, the majority violated Rule 41.2(c) of the Texas Rules of Appellate Procedure.
Our court is designed to work in panels of three justices. When we use our precious resources to turn every case into an en banc one, we delay resolution of the en banc case and all other cases on our docket.
Even if the majority opinion is correct that there was a duty in this case, the duty lies in premises liability. Both the majority opinion and Justice Jewell’s dissenting opinion make that clear. Appellees pled the case as a premises case yet submitted a general negligence issue to the court for its submission of HNMC’s negligence to the jury. Even after counsel for Siemens asked for a premises liability issue, the appellees did not agree.1
A second issue in this case is whether or not this is really invited error and should the result be an affirm. The majority discusses the invited error doctrine, but the majority focuses more on Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010), than on United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017), which recognized that a defendant is under no obligation to object to a plaintiff’s incorrect submission. Id. at 481.
On the one hand, at every stage of the case—pretrial, during trial, and post-trial—HNMC claimed that it owed no duty to the appellees, because the accident did not happen on its premises. On the other side of the ledger, HNMC did file a proposed jury charge with the court under a general negligence “landowner” standard. Siemens filed a proposed jury charge with a traditional premises standard for HNMC and Harris County. Appellees filed a proposed general negligence charge as to HNMC.
During the charge conference, counsel for Siemens stated, “I would agree with [plaintiffs’ counsel] that I would prefer to submit the hospital and Harris County under a negligent activity claim as it is in the charge here and as he has proposed. I just don’t think ... that it’s proper.” According to the reporter’s record, counsel then submitted a standard premises instruction for HNMC under Pattern Jury Charge Section 66.4. Counsel for HNMC stated, “I think that the jury charge as a broad form negligence is appropriate, your honor.” Counsel for appellees stated, “Plaintiffs join.” The judge stated, “And your proposed instruction is refused.”
Is this then invited error under Del Lago? Is the statement of HNMC’s counsel—in response to a co-defendant’s request—invited error?
What we know from reading the majority opinion is that the majority concluded that HNMC had a duty of some sort as the owner of a premises abutting a public roadway because HNMC either created the dangerous condition (by its design of the exit stairs, the parking lot, and its installation of a concrete pad to assist in crossing at an abandoned crosswalk) and/or that it knew about, but failed to warn of, an obscured danger on land directly appurtenant to the premises. (I am unclear from the majority opinion exactly what the obscured danger was in crossing a public street near a parking lot exit where a person could clearly see cars exiting the lot.) This is not a general negligence duty and the trial court erred in finding such a duty.
No one has suggested that HNMC has waived its argument that there was no duty at all, even if HNMC invited the jury charge error. Yet the result here is an affirm despite the fact that the duty was improperly submitted. Perhaps a better result would be a remand for a new trial.
I join in Justice Jewell’s dissent with these thoughts.
En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Poissant authored an En Banc Majority Opinion, which was joined by Justices Bourliot, Zimmerer, Spain, and Hassan. Justice Hassan authored an En Banc Concurring Opinion, which was joined by Justices Bourliot and Spain. Chief Justice Christopher authored an En Banc Dissenting Opinion, which was joined by Justice Wilson. Justice Jewell authored an En Banc Dissenting Opinion, which was joined by Chief Justice Christopher and Justices Wise and Wilson.
EN BANC DISSENTING OPINION
Kevin Jewell Justice
A negligent driver struck and killed a pedestrian on a public road. One issue in this appeal is whether the owner of property adjacent to the road owed a duty of ordinary care to the pedestrian under the circumstances of this case. A majority of the court holds that it does, but I disagree. Texas law has never imposed on owners of property adjacent to public roads a common law duty to warn of hazards presented by ordinary road traffic. Although exceptions exist, none applies here as a matter of law. I would reverse the judgment against the property owner and render judgment in its favor.
At the end of her work shift with HNMC, Leny Chan left the hospital building and walked across Cali Drive toward her car, which was parked in a surface parking lot on the other side of the street. As Chan crossed Cali Drive, a car driven by James Budd exited the parking lot, turned left, and struck Chan, who died from her injuries. Budd was in the scope of his employment with Siemens Medical Solutions USA, Inc. HNMC neither employed nor controlled Budd.
I briefly describe the immediate area. Cali Drive is a public road owned and maintained by Harris County. On the day of the accident in March 2015, there existed two marked pedestrian crosswalks across Cali Drive at each end of the block. Chan, however, was not crossing the street at either of those marked crosswalks when she was hit. The accident occurred at a mid-block location, where we know that the county placed a marked crosswalk and maintained it at least until 2012. By March 2015, however, the painted pavement markings had faded and no crosswalk signs appeared at that location—in contrast to the clear, refreshed markings and signs that stood at crosswalks at each end of the block. The parties agree that the county abandoned the mid-block crosswalk after 2012.
The hospital building is on the west side of Cali Drive. It appears undisputed that HNMC owns the property where the hospital is located, although the evidence indicates that at least a portion of the property abutting Cali Drive near the faded crosswalk markings is burdened by a county right-of-way. On either side of the street, a part of the sidewalk—appellees describe it as a “concrete pad”—abuts the curb at mid-block near the faded crosswalk pavement markings. A witness said that HNMC installed the “concrete pad” in 2011 in the county right-of-way, though the record does not indicate when the county originally installed the crosswalk.
The parking lot, also owned by HNMC, is on the east side of Cali Drive. The parking lot’s perimeter was fenced, with two pedestrian gates at each end of the lot. A single entrance/exit for vehicles was located on Cali Drive at mid-block. Budd left the parking lot in his car and turned onto Cali Drive through this exit. Although the fence has no pedestrian gate near the vehicle entrance/exit, it was common for persons leaving the hospital, including Chan, to cross Cali Drive at mid-block and enter the parking lot by walking through the vehicle entrance/exit rather than crossing at one of the crosswalks at either end of the block and entering the lot through a pedestrian gate.
In its second issue, HNMC argues that it owed no legal duty to ensure Chan’s safety while she crossed a public road under the present circumstances. I agree. Because this issue would be dispositive of HNMC’s appeal, I confine my dissent to this point.1 See Tex. R. App. P. 47.1.
As I construe appellees’ live petition, they arguably assert their claims against HNMC as sounding in both premises liability and ordinary negligence. These two theories of recovery are distinct and depend on different elements of proof. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). The jury was charged under ordinary negligence principles only. Although HNMC contends in its third issue that the jury charge should have included premises liability elements, I agree with appellees that we need not decide that issue. In the trial court, both sides agreed on the body of law governing the duty questions presented, and in our court both sides emphasize the same law in connection with HNMC’s second issue. Accordingly, I would not reach HNMC’s third issue. With that preliminary observation, I turn to the parties’ duty arguments, beginning with a summary of the jurisprudence both sides invoke.
A. General Principles and Exceptions
The threshold inquiry in any negligence case is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is generally a question of law for the court, although in some instances it may require the resolution of disputed facts. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). In my view, the duty question this case presents is properly resolved as a matter of law.
According to appellees, HNMC “owed a duty to pedestrians as the owner of premises abutting a highway.” Because appellees’ duty argument rests on HNMC’s status as a property owner, I reiterate certain fundamental, controlling, and undisputed principles governing liability arising from unreasonable hazards existing on real property. Before the law will impose liability for such hazards, the one sought to be charged must be in a position of possession and control over the unreasonable hazard. See, e.g., Occidental Chem., 478 S.W.3d at 646; City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (“It is possession and control which generally must be shown as a prerequisite to liability.”); Rogers v. Tex. Sterling Constr., L.P., No. 14-05-01061-CV, 2007 WL 925784, at *3 (Tex. App.—Houston [14th Dist.] Mar. 29, 2007, no pet.) (mem. op.) (same). Generally speaking, property owners owe a duty to warn of or correct unreasonably dangerous conditions on their property because they control the premises. See Occidental Chem., 478 S.W.3d at 646 (owner’s duty regarding dangerous conditions on its property is rooted in its control over property); La China v. Woodlands Operating Co., 417 S.W.3d 516, 522 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Control can be demonstrated by ownership, occupation, management, or possession of property”). But the duty, when it exists, may not extend beyond the limits of the property owner’s control. Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762-63 (Tex. App.—Houston [1st Dist.] 1994, no writ).
One factual scenario that tests the contours and limits of these principles arises when injuries occur off, but close to, property owned or controlled by the party against whom liability is sought. We are here concerned with the not uncommon situation when an accident occurs on a public road adjacent to private property. Texas courts considering the existence and scope of a property owner’s liability in that instance have long arrived at a consensus that property owners are not insurers of the safety of persons traveling on or using adjacent public roads and need not protect those persons against the dangerous acts of third parties. Holland v. Mem’l Hermann Hosp. Sys., 570 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at *3 (Tex. App.—Austin Aug. 20, 2010, no pet.) (mem. op.); Pride ex rel. Pride v. Collin Park Marina, Inc., No. 05-97-01410-CV, 2001 WL 755907, at *6 (Tex. App.—Dallas July 6, 2001, pet. denied) (not designated for publication); Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 706 (Tex. App.—Fort Worth 1998, pet. denied); Tkatch v. Grand Pkwy. I & II Acquisition Grp., Ltd., No. 01-96-01355-CV, 1997 WL 694919, at *4 (Tex. App.—Houston [1st Dist.] Oct. 30, 1997, no pet.) (not designated for publication); Guereque v. Thompson, 953 S.W.2d 458, 466 (Tex. App.—El Paso 1997, writ denied); Dixon, 874 S.W.2d at 762-63; Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 190, 192 (Tex. App.—San Antonio 1988, writ denied); Portillo v. Hous. Auth., 652 S.W.2d 568, 569 (Tex. App.—El Paso 1983, no writ). The rule applies to pedestrians who, like Chan, exit the owner’s property and suffer injury on an adjacent public road. E.g., Hirabayashi, 977 S.W.2d at 706-08; Tkatch, 1997 WL 694919, at *2-4; Guereque, 953 S.W.2d at 466; Dixon, 874 S.W.2d at 762-63 (property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways). This understanding derives largely from the core concept that property owner liability for an unreasonable hazard cannot exist without control over the hazard or its location. See Barefield v. City of Houston, 846 S.W.2d 399, 403 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“Liability follows control.”). Absent unique circumstances not presented here, private property owners lack the right to control hazards, or travelers, on public roads, as that is traditionally the government’s domain. See, e.g., Garrett v. Houston Raceway Park, Inc., No. 14-94-00929-CV, 1996 WL 354743, at *2 (Tex. App.—Houston [14th Dist.] June 27, 1996, no writ) (not designated for publication).
It is undisputed that Chan was not on HNMC’s property when Budd’s vehicle struck and killed her and that neither Budd nor Chan were under HNMC’s control. Chan was walking across a public road owned and maintained by Harris County. Accordingly, the outcome of the dispute at hand should be consistent with the cases I have noted.
Appellees do not challenge the above authority, or contend it is wrong or based on faulty reasoning.2 They say one or more exceptions apply. Texas courts have recognized four exceptions to the general rule just discussed that a premises owner has no duty to prevent accidents or warn of hazards on adjacent property that it neither owns nor controls. E.g., Holland, 570 S.W.3d at 897; Hirabayashi, 977 S.W.2d at 707. First, a party assumes a duty of care if it agrees or contracts either expressly or impliedly to make safe a known, dangerous condition of real property. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997). Second, a person who has created an unreasonably dangerous condition may be liable even though not in control of the premises at the time of injury. City of Denton, 701 S.W.2d at 835; Strakos v. Gehring, 360 S.W.2d 787, 795 (Tex. 1962); see also Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 388 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Third, one who exercises actual control over adjacent property has responsibility for the portion under its actual control. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993). Finally, an owner or occupier can be liable if it knows about, but fails to warn of, an obscured danger on land directly appurtenant to the owner’s or occupier’s land. See Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 615 (Tex. 1950); Holland, 570 S.W.3d at 897; Hirabayashi, 977 S.W.2d at 707. In the trial court and in this court, both sides have focused on this body of law and construed it in support of their respective positions. Despite the parties’ efforts, however, a substantive discussion of the key cases applicable to our factual scenario is absent from the majority opinion.
Whether HNMC owed a duty under one or more of these exceptions is a legal question for the court based on the particular facts of the case. Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289 (Tex. 1996). Having submitted a negligence question to the jury inquiring as to HNMC’s conduct, the trial court necessarily concluded HNMC owed a duty to Chan, although the specific basis for the duty is not stated in the record. Appellees brief all four exceptions. My colleagues in the majority do not address any directly but appear to consider two of them—the creation of an unreasonable hazard and a failure to warn of an obscured danger—in the context of a general duty balancing test. Although I believe none of the exceptions applies, I limit my dissent only to those the majority references.
B. Discussion of the Exceptions
1. HNMC did not create the danger to pedestrians on Cali Drive.
I begin with the exception appellees address first: the proposition that HNMC created an unreasonable risk of harm that caused Chan’s death. See, e.g., City of Denton, 701 S.W.2d at 835; Holland, 570 S.W.3d at 897-98; Hirabayashi, 977 S.W.2d at 707. A study of pertinent decisions helpfully illustrates the circumstances justifying liability against a premises owner when a person injured on a public road alleges the adjacent property owner created an unreasonable hazard that caused the injury. By way of example, a property owner created an unreasonably dangerous condition giving rise to a duty when it demolished a building on its property, causing a wall to fall onto a city street, Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910-11 (Tex. 1981); when smoke from a grass fire drifted across an adjacent road, Atchison v. Tex. & Pac. Ry. Co., 186 S.W.2d 228, 229-30 (Tex. 1945); and when water from a manufacturing plant was released from cooling towers and blew onto a highway nearby, injuring a motorist, Skelly Oil Co. v. Johnston, 151 S.W.2d 863, 865 (Tex. App.—Amarillo 1941, writ ref’d). Similarly, our court has acknowledged the existence of a duty when a nursing home patient with a known tendency to wander onto a highway darted onto the road and knocked down a motorcyclist. Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 350 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).
Intermediate appellate court decisions considering property owners’ duties to persons using adjacent public roads often refer to Kraus and Atchison.3 The supreme court stated in Kraus, “[t]he owner or occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or endanger the safety of persons using the highway as a means of passage or travel” and is “liable for any injury that proximately results from his negligence.” Kraus, 616 S.W.2d at 910-11 (citing Atchison, 186 S.W.2d at 229-30). The supreme court applied an analogous duty principle to independent contractors in Strakos, when the court said, “[t]he law places a duty to warn of dangerous conditions on a public highway upon one who creates such conditions or who is in control of the area and permits such conditions to persist.” Strakos, 360 S.W.2d at 795.4 Still earlier, the supreme court explained in Buchanan:
We think it may also be said that if one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own safety may be injured by the dangerous situation so created, the one creating the same must give warning of the danger or be responsible for the consequences. To illustrate: One who in the exercise of a lawful right, and without negligence on his part, makes an excavation across a street or sidewalk or on his premises in close proximity to a public way, or parks a vehicle in a road, or otherwise obstructs the road with a foreign substance, is bound to give warning of the danger created thereby.
Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942).
The Kraus court examined whether a property owner owed a duty to those using an adjacent city street when the owner caused part of its building to fall onto the street. Similarly, the Strakos, Atchison, and Buchanan courts considered duty questions when a property owner or person exercising control over a public road created an unreasonably dangerous hazard on the road. Given the circumstances in each case, I for one find it unsurprising that, over the years, intermediate appellate courts have generally agreed that Kraus is limited to instances when the property owner creates an unreasonable hazard by negligently releasing upon the road an “agency that becomes dangerous by its very nature” once upon the highway. Hyde, 337 S.W.3d at 437 n.13; Cabrera, 2010 WL 3271729, at *3; Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Huebotter v. Diamond Shamrock Refining Co., No. 04-99-00243-CV, 1999 WL 1244422, at *2 (Tex. App.—San Antonio Dec. 22, 1999, no pet.) (not designated for publication); Hirabayashi, 977 S.W.2d at 707; Tkatch, 1997 WL 694919, at *2; Dixon, 874 S.W.2d at 763; Naumann, 749 S.W.2d at 191; see also Raburn v. KJI Bluechip Invs., 50 S.W.3d 699, 702 (Tex. App.—Fort Worth 2001, no pet.). In Kraus, Strakos, and Atchison, the supreme court found a duty to exist when the property owner or other person in control of the area created an unreasonable risk by introducing some new and dangerous agency or influence onto the public road that was distinct and separate from risks posed by ordinary use of the road.5
That said, I am not prepared to agree that the scope of a premises owner’s duty is as constrained as Naumann and like cases say, because some courts, including ours and the First Court of Appeals, have held that a property owner may owe a duty to passing users of public roads when the owners have created an unreasonable hazard by means other than releasing some independent agency onto the road itself. See McKnight v. Calvert, 539 S.W.3d 447, 458 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Zapata v. Kariyaparambil, No. 14-96-00901-CV, 1997 WL 566222, at *3 (Tex. App.—Houston [14th Dist.] Sept. 11, 1997, no pet.) (not designated for publication); Hamrick v. Kansas City S. Ry. Co., 718 S.W.2d 916, 918 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.). In those instances, courts found a duty existed because the owners negligently allowed vegetation they controlled to physically obscure stop signs or traffic intersections. McKnight, 539 S.W.3d at 458; Zapata, 1997 WL 566222, at *3; Hamrick, 718 S.W.2d at 918.
Distinguishing Kraus along the lines I have explained, several courts have held that property owners adjacent to public roads did not create hazards sufficient to impose a duty to those injured on the road. Four are particularly notable because they involved injuries on public roads to persons entering or exiting adjacent property; and still another compares favorably because the claimant in that case was in an accident with a vehicle exiting the property.6
The Austin Court of Appeals addressed allegations of negligence similar to those asserted here in Cabrera. There, a festival attendee left the festival grounds to cross an adjacent street to reach the lot where she was to be picked up. See Cabrera, 2010 WL 3271729, at *1. As she crossed the street, she was struck and killed by a vehicle. Id. Her parents sued the festival operator, alleging that the operator was negligent “in failing to choose a safe location for the festival, failing to provide adequate procedures for the safe ingress and egress of festival attendees, [and] failing to provide adequate on-site parking.” Id. The operator moved for summary judgment, arguing that it owed the deceased no duty at the time of the accident. Id. The court of appeals agreed. Because the accident did not occur on the festival premises, and because the festival operator had no right to control traffic or otherwise occupy the roadway, the court held that “under the general rule of premises liability espoused by Texas courts,” the festival operator owed no duty to ensure the attendee’s safety as she crossed the street. Id. at *3.
In Hirabayashi, a patron parked across the street from a restaurant, in a lot not owned by the restaurant. Hirabayashi, 977 S.W.2d at 705. Upon leaving the restaurant to go back to his car, the patron crossed the middle of the street, rather than using “the crosswalk farther down the block.” Id. at 706. As the patron crossed, he was hit by a car and sustained severe injuries. The patron sued the restaurant, alleging negligence for operating a business without adequate parking, creating an unreasonable risk of harm by not providing for a crosswalk or light to be placed in the street, and—like appellees allege here—failing to warn of the dangerous nature of the roadway in front of the business. Id. The restaurant argued that it owed no duty to someone crossing the middle of a busy street, and the court of appeals agreed. Id. at 706-07. The court held that none of the four “assumed duty” exceptions applied, including because the restaurant did not “create a dangerous condition in the roadway.” Id. at 707. The court reasoned, “[p]atrons who wish to cross the roadway for their own purposes can avail themselves of the crosswalk down the road, or at least make sure no cars are coming if they cross the middle of a busy road.” Id.
In another case, two drivers, Tkatch and Wheeler, collided at a stop sign, killing Tkatch. Tkatch, 1997 WL 694919, at *1. Wheeler had approached the stop sign by using a “well-known short-cut” across an adjacent landowner’s property. Id. The deceased’s survivors sued the landowner, alleging negligence for: (1) failing to adequately inspect its property to discover that motorists were using the short-cut; (2) failing to use reasonable means to prevent or deter motorists from using the short-cut by placing appropriate signs, barricades, fences, or gates; (3) permitting motorists to use its property as a short-cut; (4) maintaining a condition (i.e. a dirt road) on its premises that was dangerous to the safety of passing motorists; and (5) failing to warn and/or remedy the dangerous condition on its premises. Id. at *2. The landowner argued that it owed Tkatch no duty to guard against the acts of third-party motorists. The court of appeals agreed, even though the landowner arguably had the right and the means to control Wheeler by denying him access to the use of its premises and access through the dead-end to the highway intersection where the collision occurred. Id. at *4 & n.5 (noting that the premises owners in Naumann, 749 S.W.2d at 192, and Lawson, 888 S.W.2d at 35, dictated the means by which truck drivers could exit their premises onto the abutting highway and no duty was found in spite of this). The court also rejected the survivors’ argument that the landowner had a further duty to take affirmative action to control or avoid increasing the danger of the highway intersection, which the owner partially created by allowing motorists to access the highway intersection via its property: “the dangerous situation was not created by [the owner] permitting access to the highway intersection via its property,” but rather “the real hazard is the danger of a motorist failing to yield the right-of-way to highway traffic at a stop sign.” Id. at *4.
In Guereque, a young boy left the trailer park where he lived, crawled through a large gap in a fence on the property, and drowned in a canal abutting the property. Guereque, 953 S.W.2d at 460. The boy’s parents sued the trailer park, arguing that the owner was negligent in, among other things, creating a dangerous condition due to the lack of proper fencing on the premises and failing to warn of the dangerous condition created by the lack of proper fencing. Id. The parents also alleged that the trailer park was grossly negligent because it knew of the dangerous condition of the fence and failed or refused to remedy the fence in conscious indifference to the safety of the residents. Id. The court of appeals characterized the dispositive issue as whether the trailer park “owed a duty of care either to prevent injuries on adjacent property on which an open and obvious hazard existed, or to provide warnings that a hazard existed on adjoining property.” Id. at 466. The court concluded that no such duty existed, including because the trailer park did not create the dangerous condition leading to the boy’s death: “In order for the ‘dangerous condition’ exception to apply, [the parents] would have to demonstrate either that [the trailer park] actually created the instrumentality that caused injury or death, or that [the trailer park] controlled the property where the danger existed and failed to provide warnings. The fence did not cause Jorge’s death; the child drowned in the canal some sixty feet beyond the fence, on land owned by the El Paso Electric Company.” Id. at 468 (internal citations omitted). Because the trailer park did not create the danger presented by the canal and did not control the property through which the canal ran, the “create the danger” exception did not apply. Id.
In Naumann, the driver of a tractor-trailer left a plant, turned onto the highway, and collided with another vehicle. See Naumann, 749 S.W.2d at 190. The tractor-trailer’s driver was not under the plant owner’s control, just as Budd was not under HNMC’s control here. The vehicle’s occupants sued the plant owner, alleging that the owner “design[ed] its plant in a manner that forces tractor-trailers exiting its property to block both lanes of [the highway] ... thereby creating a hazard to motorists.” Id. The plant owner moved for summary judgment, arguing that it owed no duty to control the traffic on the public highway abutting its property. Id. The court of appeals agreed. Despite the plant owner’s knowledge of truck drivers’ propensity to block both lanes when turning onto the highway, the court concluded that the plant owner “had every right to expect [drivers] to exercise due care and to enter the highway safely.” Id. at 192. Therefore, the court held that the plant owner did not owe a duty to the injured motorists as a matter of law. Id.
Based on all the above authority, I conclude and would hold that owners of private property adjacent to public roads have no duty to warn persons entering or exiting the premises of risks inherent in public roads, as those risks are obvious and can reasonably be anticipated. Further, I would say this rule applies unless, as in Kraus and like cases, the property owner has created an unreasonable risk of harm that introduces a dangerous new or unappreciable risk not otherwise presented by ordinary road traffic. Because HNMC created no such risk, it did not owe the duty appellees and the majority contend it owed. There is no allegation or evidence that HNMC released or introduced a dangerous agency into Cali Drive. Nor is there evidence that HNMC negligently allowed some condition on its property and under its control to physically obscure any traffic sign, signal, or markings.
Until today, no Texas court has extended premises owners’ duties to public road travelers beyond the limits I have just described. The majority’s effort to expand potential liability lies in no small part on its mischaracterization of the “condition” at issue.
Appellees argue that HNMC created a danger to pedestrians crossing Cali Drive in the following ways:
• pedestrians parking in the east parking lot must cross Cali Drive;
• its operation (along with its refusal to act on government recommended remedies) concentrates, rather than separates, vehicles and pedestrians into the same area;
• pedestrians who use the northeast building exit are funneled into crossing Cali Drive at an unsafe mid-block location; and
• pedestrians are exposed to an increased risk from drivers turning left who are forced to keep their attention away from pedestrians because of the vision-obstructing signs.
My colleagues in the majority generally accept appellees’ view, specifically emphasizing the “design” of HNMC’s premises on both sides of the street. As appellees and the justices in the majority contend, HNMC’s duty arises from the design of its premises that encouraged and allowed pedestrians to cross the street in a crosswalk when the crosswalk was not a safe path from the exit of HNMC’s building to HNMC’s parking lot. Thus, the core feature of the “risk” as described by the majority opinion is the property’s “design.” This was also the crux of appellees’ duty theory in the trial court.7 Appellees cited no authority supporting their description of the dangerous condition, and the majority opinion cites none either. The majority directs us to no case holding, involving, or discussing whether, why, or how the “design” of private property abutting a public road creates an unreasonably dangerous condition when the claimant is injured on the road and not on the private property.
The “design” of HNMC’s property is not the danger here. The unreasonable hazard in this case is the risk posed to pedestrians by inattentive drivers. See, e.g., Duran, 2000 WL 768640, at *4 (darkness on street was the dangerous condition and property owner did not create it); Huebotter, 1999 WL 1244422, at *3 (property owner did not create dangerous condition that caused the accident, even though it was aware of certain traffic patterns about which the plaintiff complained); Tkatch, 1997 WL 694919, at *4 (the dangerous situation was not created by owner permitting access to the highway via its property; the “real hazard is the danger of a motorist failing to yield the right-of-way to highway traffic at a stop sign”); Naumann, 749 S.W.2d at 192 (plant owner not responsible for “dangerous situation” that existed every time a truck made a right turn in the adjacent roadway); see also Guereque, 953 S.W.2d at 468 (fence on property did not cause death; hazardous condition was the canal where child drowned). HNMC did not create the risk of inattentive drivers generally, which exists anytime someone crosses a street, whether at a marked crosswalk or elsewhere.8
The majority’s mischaracterization of the hazard distorts Texas’s traditional approach to identifying unreasonably dangerous “conditions.” When referencing a “condition” of a premises, we speak of the “state of being” of the property itself. 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016). To be clear, Chan did not trip on the “concrete pad” or any part of the sidewalk and fall into the street. There is no allegation or evidence that any access point to the street abutting HNMC’s property is broken, damaged, or defective. The crux of appellees’ allegations is that HNMC failed to do things to its property to protect pedestrians from drivers on Cali Drive. As they contend, HNMC owed a duty because it dictated the means by which pedestrians entered Cali Drive by “funneling” them to cross the street at an “unsafe mid-block location.” The “design” of HNMC’s property, therefore, purportedly is dangerous only because Cali Drive is alleged to be dangerous; and the reason Cali Drive is alleged to be dangerous is because of the risks posed by traffic, and for no other reason. If there were no traffic on Cali Drive, nothing about the “design” of HNMC’s property, including the “concrete pad,” could possibly pose any danger to pedestrians leaving the property to cross the street. As indicated from Kraus, the relevant duty requires a possessor of land to avoid allowing a condition of his land to interfere unreasonably with the public’s right to use a roadway. See Kraus, 616 S.W.2d at 910-11; see also McKnight, 539 S.W.3d at 457. Nothing about the condition of HNMC’s property was proven to interfere unreasonably with Chan’s and Budd’s right to use Cali Drive.
In my view, the fact that pedestrians must cross Cali Drive to reach HNMC’s parking lot does not present an unreasonably hazardous condition either in the street or on HNMC’s property. See Hirabayashi, 977 S.W.2d at 707-08. Further, I must disagree with appellees’ premise that pedestrians are forced to cross at mid-block. As the evidence established conclusively, HNMC in fact did not mandate where pedestrians crossed the street, and pedestrians were not compelled to cross Cali Drive at a mid-block location. Pedestrians who chose to park in the lot across the street could use one of at least two marked crosswalks to cross Cali Drive at each end of the block, where pedestrian gates in the parking lot fence awaited. See id. at 707. Instead, Chan and others chose, voluntarily, to cross at mid-block and enter the parking lot through an entrance designed only for vehicles.
The presence of the “concrete pad,” along with other “design” features, we are led to believe, fails to provide for safe ingress and egress across a public road and, because HNMC controlled those features on its property, it created the hazard. Several cases I have discussed expressly rejected just the sort of duty arguments the majority constructs, and no court (until now) has accepted them. Naumann, for instance, disagreed that a property owner has a duty to “design” premises in such a way as to protect users of adjacent public roads from the ordinary risks inherent in merely being on the road, including simply crossing a street. See Naumann, 749 S.W.2d at 191. “We must conclude that a landowner’s duty to exercise reasonable care not to endanger the safety of persons on an abutting highway does not create an obligation to guard passing motorists against the possible negligence of an independent contractor over whom the landowner exercises no control and whose competence to perform his duties the landowner has no reason to doubt.” Id. at 191-92. Naumann rejected the claimant’s “design” of the premises theory, even though the property owner in that case “knew of the propensity of the truck drivers to block both lanes when turning east on F.M. 78.” Id. at 192. The majority neither explains Naumann nor contends that case is wrong, despite relying on a negligent design theory as a principal basis of the duty it recognizes.
Intermediate courts in Austin and El Paso, and our colleagues on the First Court across the hallway, have held consistently with Naumann. The Cabrera court rejected a duty to “provide ... for safe ingress and egress” from the owner’s property into a public street. Cabrera, 2010 WL 3271729, at *1. In Tkatch, the First Court of Appeals held a property owner had no duty to avoid “increasing the danger” of a highway intersection, which the owner “partially created.” Tkatch, 1997 WL 694919, at *4 (noting that Naumann determined no duty existed even when property owner dictated means by which truck drivers could exit its premises onto the adjacent street). In Guereque, there was no duty to “provide warnings that a hazard existed on adjoining property.” Guereque, 953 S.W.2d at 466. I agree with these decisions. This case simply does not present any unreasonably dangerous “state of being” on HNMC’s property that was the cause or instrumentality of Chan’s injury and of which HNMC was required to warn or make safe. See 4Front, 505 S.W.3d at 912.
In sum, I would hold that any duty by HNMC to warn Chan of the dangers inherent in walking across a public road cannot rest on the proposition that HNMC created an unreasonably dangerous condition. My view aligns with the overwhelming if not conclusive weight of authority on the subject. While the Supreme Court of Texas was not asked to review every intermediate appellate court decision I have mentioned, it declined review in Pride (2001); Gonzales (2000); Duran (2000); Hirabayashi (1998); Guereque (1998); Naumann (1988); Northwest Mall (1985); and Golden Villa (1984). Perhaps the time has come for the supreme court to grant review. If Texas law is in truth different than the many cases I have examined construed it to be, then the supreme court should clearly say so and clarify when a premises owner may owe a duty to users of an adjacent public road by creating an unreasonably dangerous condition.
2. HNMC did not fail to warn of an obscured danger on Cali Drive.
The majority also tacitly incorporates into its duty discussion another exception cited by appellees: that HNMC owed a duty to warn of an “obscured danger.” See Holland, 570 S.W.3d at 898 (fourth exception “has been applied to extend the duty to keep a premises safe from obscured dangers present near the entries and exits of the premises”). This line of cases does not support the majority’s holding either. In Renfro Drug, a patron fell and was injured when exiting a parking garage through a door that opened into a retail space directly over a set of steps not level with the adjacent garage floor. See Renfro Drug, 235 S.W.2d at 614. The evidence showed that the heavy solid metal door masked from patrons the difference in floor levels and that the door opened inward over the step, preventing patrons from seeing the step-down in time to observe and avoid the danger. Id. at 620. The supreme court held that the retail tenant assumed a duty to keep the entrance safe from the hidden dangerous condition. See id. at 617. Another court has held that a parking lot owner owed a duty to erect barriers or to warn invitees of a creek between the lot and a nearby theater; the creek was obscured by the manner in which the lot attendant parked the cars, so that the rear of the cars extended out over the creek bed. See Parking, Inc. v. Dalrymple, 375 S.W.2d 758, 762-63 (Tex. App.—San Antonio 1964, no writ).
Here, in contrast, there was no obscured danger of which HNMC knew and about which HNMC should have warned pedestrians. “The obvious presence of cars passing on a roadway is not an ‘obscured’ danger.” Hirabayashi, 977 S.W.2d at 707-08; see also Holland, 570 S.W.3d at 898 (“A crack in the pavement on a commonly-used roadway, as alleged by Holland, is not the type of obscured danger contemplated by this exception.”); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 547 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (exception could not apply when there was no pleading or summary judgment evidence that train tracks in front of property owner’s entrance were obscured); Vidrine v. Ctr. for the Performing Arts at the Woodlands, No. 09-12-00378-CV, 2013 WL 5302654, at *9 (Tex. App.—Beaumont Sept. 19, 2013, pet. denied) (mem. op.) (“We conclude the inadequately lit steps do not present the type of ‘obscured danger’ to which this narrow exception to the general rule has been applied.”); Duran, 2000 WL 768640, at *5 (“[T]he danger of crossing a busy roadway, particularly in the dark, is a commonly understood danger.”). There is no evidence that Chan’s ability to observe cars either in the roadway or turning out of HNMC’s parking lot was obscured. In fact, another nurse who was crossing the street with Chan at the time of the accident agreed at trial that there was nothing that “in any way would have blocked or obscured [her] view of a vehicle leaving [the parking lot].” HNMC has no duty to warn invitees entering and exiting its property of the known danger of crossing the roadway. See Hirabayashi, 977 S.W.2d at 707-08.
According to appellees, the “obscured” danger was not traffic generally, but rather “that drivers had to contend with hospital signage that completely obstructed their view to the north, and that such drivers would be focusing their attention northward, scanning for oncoming vehicles, rather than southward where pedestrians were crossing.” I disagree. The alleged “vision-obstructing signs” are irrelevant to the facts of this case. When Budd exited the parking lot, Chan was crossing Cali Drive to Budd’s left. Budd turned left and hit her. The signs on which appellees focus were to Budd’s right. There existed no visual obstruction to his left, a fact he readily admitted. At trial, Budd agreed that he had “a completely clear view” to the left.
Moreover, appellees’ argument, which the majority opinion erroneously accepts, assumes that drivers will, after looking northward to the right, fail to check the surroundings to their left before making a left turn. In other words, appellees contend that drivers will be looking right when turning left, and that the hospital is responsible for guarding against such negligent behavior. But HNMC had every right to expect drivers leaving its parking lot and pedestrians crossing Cali Drive to exercise due care while on the roadway. See, e.g., Naumann, 749 S.W.2d at 192 (“An owner or occupier of property is not an insurer of the safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.”). There is no legal requirement that a person anticipate negligent or unlawful conduct on the part of another. See DeWinne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Lawson, 888 S.W.2d at 35; see also Williams v. Hill, 496 S.W.2d 748, 751 (Tex. App.—Tyler 1973, writ ref’d n.r.e.).
For these reasons, I would hold that the “obscured danger” exception does not apply. A property owner in HNMC’s position has no duty to warn of dangers “ ‘within the ordinary knowledge common to the community.’ ” Hirabayashi, 977 S.W.2d at 707 (quoting Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991)); see also Duran, 2000 WL 768640, at *5. As that principle is applied to the present circumstances, I can safely say that “[i]n Texas, a land owner or occupier does not owe a duty to protect motorists from persons entering or exiting the premises.” Duran, 2000 WL 768640, at *4 (citing Dixon, 874 S.W.2d at 763); see also Naumann, 749 S.W.2d at 191-92. The converse is also true: a landowner or occupier does not owe a duty to protect persons entering or exiting the premises from motorists on a public road. E.g., Hirabayashi, 977 S.W.2d at 707-08; Dixon, 874 S.W.2d at 763.
C. Foreseeability Does Not Support a Duty
Finally, appellees contend that, regardless of the general rule that a premises owner owes no duty to protect users of an adjacent public roadway, and further assuming none of the four exceptions apply, HNMC nevertheless owed a duty to pedestrians under Texas’s multi-factor balancing test for determining whether to recognize a tort duty. Specifically, appellees contend HNMC owed a duty “based on the foreseeability of dangers it knew from previous incidents.”
Whether to impose a common-law negligence duty involves balancing several interrelated factors. Golden Spread Council, 926 S.W.2d at 289-90; Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). A court must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Golden Spread Council, 926 S.W.2d at 289-90. Also among the relevant considerations is whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. Id.; Graff, 858 S.W.2d at 920.
The majority’s reliance on this general balancing test as the basis for its duty holding is rife with procedural and substantive concerns.
1. Procedural problems
My colleagues in the majority fault HNMC for failing to brief or argue either in our court or in the trial court three factors relevant to the balancing test the majority applies: the social utility of the actor’s conduct; the magnitude of the burden of guarding against the injury; and the consequences of placing the burden on the defendant. Yet the majority opinion fails to mention that appellees not once invoked this balancing test in the trial court. Thus, why HNMC would be required or expected to address those issues in its opening brief remains unexplained. Traditionally, we do not affirm judgments based on arguments not preserved in the trial court,9 but the majority apparently finds that long-standing practice inconvenient here and affirms the judgment based on a tort duty balancing test that appellees did not raise until their appellees’ brief in this court. Even in that document, appellees addressed only the foreseeability factor and none other. Appellees did not argue in the trial court or in this court why the other factors supported a duty despite the many decisions I have discussed that expressly reject a duty in comparable circumstances. The majority “refuse[s] to consider” arguments on certain factors HNMC did not present in its appellant’s brief, but the majority has no difficulty construing factors in appellees’ favor even though they too did not present argument on those factors in the trial court. The majority inexplicably faults HNMC for not briefing the factors of a test it was not on notice of a need to brief; yet the majority implicitly relieves appellees of any burden to have first argued in the trial court all the factors of a balancing test they belatedly say applies.
After submission of this case to the original panel, this court’s majority opinion did not comment on preservation or waiver issues because the proper disposition on the merits was clear. But now that a majority of the en banc court has criticized one party for failing to present argument on the balancing test at the appropriate time, we should apply preservation and waiver doctrines evenhandedly. We should not affirm the trial court’s judgment based on legal arguments appellees did not timely present to the trial court and to which HNMC had no opportunity to respond in that court. See, e.g., Sullivan, 618 S.W.3d at 930; Drennen, 367 S.W.3d at 300.
A related concern is the majority’s references to the lack of evidence pertaining to the factors. If it is true that the record is deficient in that regard, I fail to see how that reality supports the imposition of a duty. Appellees are the parties relying on the general balancing test to establish a duty; thus, they bore the burden of proof in the trial court. If the record contains no evidence, then appellees bear the consequence. Besides, as to most factors, whether or not they support a duty does not turn on the evidence, as the question is essentially one of law. See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017) (“The policy components of the factors—including the nature of the covered risks and general foreseeability—are policy issues for the court to consider as a matter of law.”). One reason for this is because “the factual situation presented must be evaluated in the broader context of similarly situated actors.” Id. Thus, case-specific facts generally are pertinent only to the risk and foreseeability factors, and then they are appropriate for jury resolution only if disputed. See id.
2. Substantive problems
I cited above many cases discussing whether and in what circumstances premises owners owe a duty to protect users of adjacent public roads. The parties brought the bulk of those cases to our attention as well. Had the en banc court’s opinion addressed them fully, those justices in the majority would have seen that only a handful even mention the general duty balancing test and, of those, none conclude that its application supports the imposition of a duty. Pride, 2001 WL 755907, at *6; Gonzales, 7 S.W.3d at 306-08; Tkatch, 1997 WL 694919, at *3-4; Garrett, 1996 WL 354743, at *2; Lawson, 888 S.W.2d at 34-35.10
Nothing about this case compels a different conclusion. Concerning foreseeability of the risk—the only factor appellees addressed in their brief—I conclude any foreseeability of the risk by HNMC is not enough to impose a duty. HNMC was concerned about pedestrian safety along Cali Drive, at least since 2009: the hospital wrote to Harris County several times, alerting the county of vehicle-pedestrian accidents and seeking the county’s help in addressing the hospital’s safety concerns. This was appropriate because the county controls the road. Further, I disagree with the majority that the foreseeability factor necessarily weighs in appellees’ favor. The record shows at most three prior similar incidents, each of which occurred three to seven years before Chan’s accident. But there is no evidence that Budd was involved in any of them, that HNMC controlled Budd, or that HNMC had reason to doubt Budd’s competence as a driver. A property owner’s simple awareness of a potential traffic danger it did not create and does not control cannot alone support a duty. See Buchanan, 159 S.W.2d at 110; Huebotter, 1999 WL 1244422, at *3 (knowledge of traffic patterns not sufficient to impose duty); Gonzales, 7 S.W.3d at 307 (prior road accidents in general not sufficient to impose duty). That harm is foreseeable only in the general sense that traffic accidents can happen. The majority’s approach has erroneously made premises owners into insurers of the safety of all patrons that may come and go from their property by crossing a public street.
Moreover, although foreseeability is a dominant factor, and even presuming appellees are right that Chan’s injury should have been foreseeable to HNMC, foreseeability alone is not sufficient to justify the imposition of a duty. See, e.g., Golden Spread Council, 926 S.W.2d at 290-91; Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Naumann, 749 S.W.2d at 192 (rejecting imposition of duty on landowner to protect passing motorists, even though landowner knew of danger posed by premises exit).
Although the degree of harm in the event of injury can be high, as this case unfortunately illustrates, few if any of the other factors support imposing a duty. The evidence does not show that the risk and likelihood of injury were great. Again, the majority cites no more than three incidents occurring in the seven years prior to Chan’s accident. The potential of an incident such as this is possible, but random, and it was not shown to be so common as to be reasonably probable. While it may be possible that a pedestrian crossing at midblock may be involved in an accident with an automobile leaving the parking lot, the evidence does not show that eventuality to be likely or frequent.
As to the utility, burden, and consequences of imposing a duty on the defendant, creating a duty to protect pedestrians from dangers inherent in crossing a street would impose a vast and substantial burden on millions of Texas property owners, which is not easily or reasonably justified. See, e.g., Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 411 (Tex. 2009) (declining to impose a duty on employers to protect the public from fatigued employees: “Expecting employers to monitor or control such factors would be unreasonable, especially when the risk of driving while fatigued is within the common knowledge of all drivers, and employees generally know not to drive when they are too tired.”). The responsibility of maintaining the safety of, or controlling traffic on, public roadways generally lies with the government. See Garrett, 1996 WL 354743, at *2; Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226-27 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
Texas has never burdened private property owners to discern and advise pedestrians where, in the owners’ estimation, general traffic may or may not make it “unsafe” to cross a public road near the owners’ property.11 Nor is it property owners’ duty to warn the general public of ordinary traffic risks on adjacent public roads. Such a duty could exist only when one of the above-discussed exceptions applies. Under the majority’s reasoning, however, every property owner is now duty-bound to warn jaywalkers coming or going that it is unsafe to jaywalk. But the law does not require a person to anticipate negligent or unlawful conduct by another. DeWinne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Gonzales, 7 S.W.3d at 307; Lawson, 888 S.W.2d at 35; Smith v. Doyle, No. A14-93-0316-CV, 1994 WL 88855, at *4 (Tex. App.—Houston [14th Dist.] Mar. 10, 1994, no writ) (not designated for publication). HNMC had every right to expect that motorists such as Budd would exercise due care when turning onto Cali Drive, and that pedestrians such as Chan would exercise due care in crossing a public roadway. Walking across a public road certainly can present risks from vehicle traffic, but that risk becomes unreasonable mainly when users—whether vehicle operators or pedestrians—fail to pay attention or fail to follow rules. Unfortunately, one never knows when or where that may happen. The majority births an entirely new and unwarranted expansive duty never recognized before. In the process, the court creates rather than calms conflict between this court and other appellate courts generally, including, more problematically, the First Court of Appeals. See Tkatch, 1997 WL 694919, at *4-5; Lawson, 888 S.W.2d at 35; Dixon, 874 S.W.2d at 763.
In a post-submission letter, appellees summarize the steps that HNMC could have taken to ensure pedestrian safety along Cali Drive:
A pedestrian gate [next to the vehicle entrance/exit] might have helped somewhat by angling pedestrians away from the driveway. But the Hospital should have taken measures to stop or discourage pedestrians from crossing the street in that unsafe location. For example, it could have installed a grassy area, bushes, or other obstruction, such as cabling or a fence. The Hospital also could have closed the building’s northeast exit or transformed it into an emergency exit.
But whether HNMC could have taken the steps cited by appellees is not sufficient to balance the scales in favor of imposing a duty on HNMC in this instance. Accord, e.g., Buchanan, 159 S.W.2d at 110 (a person may owe a moral duty to warn a passerby about a dangerous condition, “but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance”). A practical ability to warn does not create a duty to do so; just as a person has no general duty to control others even when that person has the ability. See Nabors, 288 S.W.3d at 404; Phillips, 801 S.W.2d at 526. Expanding the scope of a premises owner’s duty with respect to adjacent public roadways anytime the owner has a mere ability to take some action that might decrease a risk on the roadway would make it nearly impossible to discern where a premises owner’s liability begins and ends. Finally, HNMC did not control and had no right to control Budd or Chan, nor was HNMC shown to have superior knowledge of the risk—i.e., crossing an open road—relative to any of the other parties.
Leny Chan died tragically from injuries sustained when struck by a third party in a public roadway. Under the circumstances presented here, HNMC, as the adjacent premises owner, owed no legal duty to warn or otherwise protect Chan from the danger of crossing the roadway. Because HNMC owed no duty, appellees’ negligence claim fails as a matter of law. I would sustain HNMC’s second issue, reverse the trial court’s judgment, and render judgment that appellees take nothing from HNMC.
A majority of the court, consisting of Justices Bourliot, Zimmerer, Spain, Hassan, and Poissant, has voted to grant the motion for en banc reconsideration. Chief Justice Christopher, and Justices Wise and Jewell voted to deny the motion.
We will refer to all appellees collectively as “appellees.” Our use of “Chan” throughout the opinion refers only to Leny.
In the past, a marked crosswalk was located at mid-block near the hospital’s northeast exit. However, Harris County alleges it abandoned the crosswalk at some point prior to the accident, and it was no longer clearly visible on the roadway because the paint stripes had deteriorated or faded. Additionally, no crosswalk signs appeared at this location, as stood at other designated crosswalks in the vicinity of the hospital.
On February 16, 2012, Harris County sent HNMC a letter after Harris County completed a traffic and pedestrian study that HNMC requested. In this communication, Harris County informed HNMC that it was removing two of the five existing pedestrian crossings on Cali Drive, including the one where Chan was killed. Harris County’s internal documents indicate that it was removing—i.e., ceasing to maintain—the crossing where Chan was killed. Harris County, however, closed the work order due to an administrative error without removing the crosswalk markings on Cali Drive between the parking lot and the northeast entrance. HNMC’s CEO testified that no one informed HNMC’s employees that the crosswalk had become a “non-designated crosswalk” and that it was a “non-designated crosswalk” when Chan was killed.
Barreda testified at trial regarding this incident.
Anderson also wrote to the commissioner of Precinct 4 immediately after Barrera’s incident asking Harris County to install speed bumps on Cali Drive. In this communication, Anderson stated:
There have been other scares at our Pedestrian Crossings around the perimeter of the campus, but this incident on the busiest side street of a large suburban hospital brings to light the brevity of life. It is a life safety issue too serious to ignore for the protection of our patients, visitors, staff[,] and physicians.
These cases cite to the risk-utility test factors.
The two letters sent by HNMC to Harris County reference the incident involving Barreda in 2008. HNMC’s 2009 letter references a “similar incident” and “other scares at [HNMC’s] pedestrian crossings around the perimeter of the campus ....” HNMC’s 2010 letter describes an incident in 2010 that was “similar” to Barreda’s 2008 incident.
See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (“More than one act may be the proximate cause of the same injury.”) (citing Travis, 830 S.W.2d at 98); McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980) (failure to use ordinary care “need not be the sole cause, but it must be a concurring cause and such as might reasonably have been contemplated as contributing to the result under the attending circumstances”) (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103-104 (Tex. 1977)); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex. App.—Tyler 1995, writ denied); Nw. Mall, Inc. v. Lubri-Lon Int’l, Inc., 681 S.W.2d 797, 803 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“Where the failure to use ordinary care actively aids in producing an injury, it need not be the sole cause.”); see also Lane v. Halliburton, 529 F.3d 548, 566 (5th Cir. 2008) (“ ‘[I]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’ Rest. (2d) Torts § 449. Texas courts have applied this theory of liability in previous cases.”) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); Kimbriel Produce Co. v. Mayo, 180 S.W.2d 504, 507 (Tex. App.—San Antonio 1944, writ ref’d w.o.m.); Engle v. Dinehart, No. 99-10087, 2000 WL 554942, at *11-12 (5th Cir. Apr. 19, 2000) (noting that Texas courts have adopted the causation theory embodied in Sections 448 and 449 of the Restatement)); Restatement (Second) of Torts § 449 cmt. b (Am. Law Inst. 1965); id. at reporter’s n. cmt. b (citing Jesse French Piano & Organ Co. v. Phelps, 105 S.W. 225 (Tex. App.—Austin 1907, no writ)).
(“Second, where the defendant’s negligence creates or increases the foreseeable risk of harm through the intervention of another force, the defendant is not relieved of liability by the fact that the risk to which he subjected the plaintiff has indeed come to pass. Restatement § 442A; Dew, 208 S.W.3d at 453. Similarly, if the likelihood that a third person may act in a particular manner is one of the hazards that makes the defendant negligent, that act (even if criminal or intentional) does not prevent the defendant from being liable. Restatement § 449. Thus, where the original negligence enables the intervening force to occur and contributes to the resulting harm, the intervening force is a concurring cause. Stanfield, 494 S.W.3d at 99; see also Dew, 208 S.W.3d at 453 (concluding intervening act that ‘exploited th[e] inadequacy’ created by defendant’s negligence ‘did not fundamentally alter the foreseeable consequences of [defendant’s] original negligence’).”).
Even if this were not enough, we are obliged to examine other states’ jurisprudence when determining whether a duty exists. SmithKline Beecham Corp., 903 S.W.2d at 351. Section 449 of the Restatement has been quoted by other state courts as well. See, e.g., Hurn v. Greenway, 293 P.3d 480, 484 (Alaska 2013); Petolicchio v. Santa Cruz Cty. Fair & Rodeo Ass’n, Inc., 866 P.2d 1342, 1349 (Ariz. 1994); Keck v. Am. Emp’t Agency, Inc., 652 S.W.2d 2, 6 (Ark. 1983); Sharp v. W.H. Moore, Inc., 796 P.2d 506, 511 (Idaho 1990); Tenney v. Atl. Assocs., 594 N.W.2d 11, 21 (Iowa 1999); State v. Anderson, 12 P.3d 883, 887 (Kan. 2000); Horridge v. St. Mary’s Cty. Dep’t of Soc. Servs., 854 A.2d 1232, 1246 (Md. 2004); Small v. McKennan Hosp., 437 N.W.2d 194, 202 (S.D. 1989); Stewart v. Wulf, 271 N.W.2d 79, 87 (Wis. 1978); see also Lacy v. D.C., 424 A.2d 317, 323 (D.C. 1980). Section 449 has also been cited by several federal courts as well. See, e.g., F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236, 246 (3d Cir. 2015); Fisher v. Halliburton, 667 F.3d 602, 616 (5th Cir. 2012); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 435 n.4 (7th Cir. 1978).
(citing Abdallah v. Caribbean Sec. Agency, 557 F.2d 61 (3d Cir. 1977) (question as to whether security company, which was on notice as to malfunctioning burglar alarm, could be held liable for burglary losses); Hannah v. Gulf Power Co., 128 F.2d 930 (5th Cir. 1942); Romero v. Superior Court, 107 Cal. Rptr. 2d 801 (Cal. Dist. Ct. App. 2001) (adult defendant who assumed special relationship with minor by inviting minor into his or her home will be deemed to have owed duty of care to take reasonable measures to protect minor against assault by another minor invitee while in defendant’s home when evidence and surrounding circumstances establish that defendant had actual knowledge of and thus must have known the offending minor’s assaultive propensities); Kane v. Hartford Accident & Indem. Co., 159 Cal. Rptr. 446 (Cal. Dist. Ct. App. 1979); Adam v. L.A. Transit Lines, 317 P.2d 642 (Cal. Dist. Ct. App. 1957); Williams v. Grier, 26 S.E.2d 698 (Ga. 1943); Childers v. Franklin, 197 N.E.2d 148 (Ill. App. Ct. 1964); Blessing v. Welding, 286 N.W. 436 (Iowa 1939); Hall v. Midwest Bottled Gas Distribs., Inc., 532 S.W.2d 449 (Ky. 1975); State, to Use of Schiller v. Hecht Co., 169 A. 311 (Md. 1933); Quinn v. Winkel’s, Inc., 279 N.W.2d 65, 68 (Minn. 1979) (bartender has duty to protect patron from persons who the bartender knows to have a violent nature and who are known to frequent the premises); Christiansen v. St. Louis Pub. Serv. Co., 62 S.W.2d 828 (Mo. 1933); Daniels v. Andersen, 237 N.W.2d 397 (Neb. 1975) (duty of jailer to provide his prisoners with adequate protection); Eitel v. Times, Inc., 352 P.2d 485 (Or. 1960); Morris v. Barnette, 553 S.W.2d 648 (Tex. App.—Texarkana 1977, writ ref’d n.r.e.); Alonge v. Rodriquez, 279 N.W.2d 207, 210 (Wis. 1979); Korenak v. Curative Workshop Adult Rehab. Ctr., 237 N.W.2d 43 (Wis. 1976) (duty of vocational school to protect students from trainees with known and demonstrated tendencies to violence); Restatement (Second) of Torts § 448 (Am. Law Inst. 1965)).
See Greater Houston Transp. Co., 801 S.W.2d at 525 (“In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.”).
Perhaps fearing that the court would not find invited error, the appellees assert repeatedly in their brief that general negligence is the correct standard while at the same time, they discuss the design of the stairs, the design of the entrance to the parking garage, and the presence of a concrete pad and signs on the premises blocking a driver’s view—all traditional premises issues.
I direct my present comments to the merits but note my agreement with Chief Justice Christopher that the majority has violated Texas Rule of Appellate Procedure 41.2(c) in more than one respect. This case is not en banc worthy. Moreover, far from securing uniformity in the court’s decisions, the majority opinion gives rise to new and unwarranted conflicts with this and other appellate courts.
In the trial court, appellees acknowledged this line of authority, citing Hirabayashi: “Texas courts generally do not find duties for landowners for injuries that occur off of the owners’ premises. Usually there is no duty to protect persons from injury on adjacent property a person neither owns nor occupies.”
See Cabrera, 2010 WL 3271729, at *3; Pride, 2001 WL 755907, at *6-7; Hirabayashi, 977 S.W.2d at 707; Tkatch, 1997 WL 694919, at *2; Dixon, 874 S.W.2d at 763; Naumann, 749 S.W.2d at 191; see also Hyde v. Hoerauf, 337 S.W.3d 431, 437 n.13 (Tex. App.—Texarkana 2011, no pet.) (discussing Kraus); Duran v. Cinemark U.S.A, Inc., No. 05-99-01433, 2000 WL 768640, at *4 (Tex. App.—Dallas June 15, 2000, pet. denied) (not designated for publication) (same); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (same).
At issue in Strakos was the liability of an independent contractor (as opposed to a property owner) who was hired to widen a road but left holes in the ground after removing fenceposts, as well as the liability of a subcontractor hired to prepare the widened road for surfacing. Strakos, 360 S.W.2d at 795. The plaintiff Strakos fell into one of the unfilled holes. The contractor and subcontractor were held to owe a duty to Strakos because the contractor created the holes (which were partially obscured) and the subcontractor controlled the area but failed to correct or warn of the danger the unfilled holes presented to those using the road. Id. An independent contractor who created a dangerous condition, the court said, can remain liable for the condition even after relinquishing control of the property. Id. at 790; see also Occidental Chem., 478 S.W.3d at 647-48 (discussing Strakos).
Similarly, this court and others have upheld liability when those in control of premises create unreasonable hazards on publicly traversed ways other than roads. Nw. Mall, Inc. v. Lubri-Ion Int’l, Inc., 681 S.W.2d 797, 802 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (kiosk operator in shopping mall allowed oil to spill outside the immediate premises under its control and into mall’s public walkway); Beaumont Iron Works Co. v. Martin, 190 S.W.2d 491, 495 (Tex. App.—Beaumont 1945, writ ref’d w.o.m.) (windowpane fell from a building onto an adjacent sidewalk). In Northwest Mall, this court cited Kraus in support of its holding. Nw. Mall, 681 S.W.2d at 802.
In today’s case, Budd had just exited HNMC property at the time his car struck Chan on Cali Drive. I will assume that Chan, crossing the street to the parking lot, was both exiting and entering hospital property.
For example, appellees argued that a duty existed because “HNMC failed to design its premises in a safe manner.”
See Stiff v. Kaufman Indep. Sch. Dist., No. 05-17-00988-CV, 2018 WL 3725278, at *6 (Tex. App.—Dallas Aug. 6, 2018, no pet.) (mem. op.) (stating “there is some risk involved for any pedestrian crossing a roadway”).
See, e.g., Sullivan v. Microsoft Corp., 618 S.W.3d 926, 930 (Tex. App.—El Paso 2021, no pet.); Miramar Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217 n.2 (Tex. App.—Corpus Christi 2016, pet. denied); Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067, at *2 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.); Drennen v. ExxonMobil Corp., 367 S.W.3d 288, 300 (Tex. App.—Houston [14th Dist.] 2012) (“[W]e will not affirm the trial court’s judgment based on a legal theory not presented to the trial court and to which the other party had no opportunity to respond.”), rev’d on other grounds, 452 S.W.3d 319 (Tex. 2014); Ethicon Endo-Surgery, Inc. v. Gillies, 343 S.W.3d 205, 210 (Tex. App.—Dallas 2011, pet. denied).
All of those courts determined that the balancing test weighed against a duty because the harm was not foreseeable.
See, e.g., Gonzales, 7 S.W.3d at 308 (declining to place a common-law duty on landowners to assess whether intersections adjacent to their property are sufficiently illuminated).