Estate of Carl Edwin Cromwell et al v. Starr et al
Filing
31
MEMORANDUM OPINION AND ORDER: The court ORDERS that defendants' 24 motion for summary judgment be, and is hereby, granted; that plaintiffs take nothing on their claims against defendants' and, that plaintiffs' claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 3/22/2018) (bdb)
US, DISTRJCT COURT
NORTHERN DlS'lRJCT OF TEXAS
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IN THE UNITED STATES DISTRICT CO RT+·
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
I
CARLEEN CROMWELL AARON,
INDIVIDUALLY AND AS INDEPENDENT
ADMINISTRATRIX OF THE
ESTATE OF CARL EDWIN CROMWELL,
DECEASED, ET AL.,
I MAR 2 2 2018
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Plaintiffs,
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vs.
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NO. 4:17-CV-503-A
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BILL STARR, ET AL.,
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Defendants.
:
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants, Bill
Starr, Ruth Starr, and Ruth Starr 2011 Revocable Trust, for
summary judgment. Plaintiffs, Carleen Cromwell Aaron,
individually and as Independent Administratrix of the Estate of
Carl Edwin Cromwell, Deceased, and Carl Edwin Cromwell, Jr., have
failed to respond to the motion, which is ripe for ruling. Local
Civil Rule LR 7.l(e). The court, having considered the motion,
the record, including the summary judgment evidence, and
applicable authorities, finds that the motion should be granted.
r
I.
Plaintiffs' Claims
The operative pleading is plaintiffs' first amended original
complaint filed August 8, 2017. Doc. 1 12. This is a premises
liability lawsuit. Plaintiffs allege: Their father, Carl Edwin
Cromwell
("Cromwell"), was a caretaker and yard maintenance man
for defendants, who own property at a subdivision known as the
Cliffs. The backyard of defendants' property reaches out to the
cliffside facing a lake. The cliffside has a mild slope down to
the edge, which drops straight off 20-30 feet to rocks below.
Defendants built a fence 8-10 feet high around the backyard, but
placed an iron swing/bench outside the fence. Cromwell had worked
for defendants at the Cliffs for years, performing yard work
inside and outside the fence. On May 20, 2015, while performing
yard work, Cromwell fell off the cliffside to his death.
II.
Grounds of the Motion
Defendants urge three grounds in support of their motion:
(1) The cliff edge was open and obvious and plaintiffs cannot
show that it was necessary for Cromwell to encounter the
condition or that he was unable to take precautions.
(2) There is
no evidence to establish what caused Cromwell to fall over the
'The "Doc.
"reference is to the number of the item on the docket in this action.
2
cliff edge. And,
(3) defendants did not own, possess, or control
the naturally occurring cliff edge. Doc. 24.
III.
Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the. nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56{a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
("A party
is genuinely disputed must support
citing to particular parts of materials in
3
the record
'
II
)
'
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
In Mississippi Prat. & Advocacy
Sys. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prat. &
Advocacy Sys., 929 F.2d at 1058.
2
In Boeing Co. v. Shipman, 411F.2d365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the comt should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
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IV.
Analysis
This is a diversity case in which Texas law applies. Cleere
Drilling Co. v. Dominion Exploration & Prod.,
646
Inc., 351 F.3d 642,
(S'h Cir. 2003). In Texas, an owner/occupier owes a duty to
use reasonable care to make and keep its premises safe for
business invitees. Clayton Williams, Jr., Inc. v. Olivo,
S.W.2d 523, 527
952
(Tex. 1997). The elements of a cause of action
for premises liability are:
(1) existence of a condition of the
premises creating an unreasonable risk of harm;
(2) the
owner/occupier knew or should have known of the existence of the
condition;
(3) the owner/occupier failed to use reasonable care
to reduce or eliminate the risk by rectifying or warning of the
condition; and (4) such failure was a proximate cause of
plaintiff's injury. Austin v. Kroger Tex., L.P., 465 S.W.3d 193,
2013
(Tex. 2015); CMG Homes, Inc. v. Daenen, 15 S.W.3d 97, 99
(Tex. 2000). An owner/occupier is not an insurer of the safety of
his guests; liability may not be imposed by the mere fact that
one is injured. Dickson v. J. Weingarten, Inc., 498 S.W.2d 388,
389
(Tex. App.--Houston [14th Dist.]
1973, no writ).
The duty owed to an invitee is to make safe or warn against
any concealed, unreasonably dangerous condition. Austin, 465
S.W.3d at 203. When the invitee is aware of the dangerous
5
condition, in most cases the law presumes that the invitee will
take reasonable measures to protect himself. Id.; Wallace v.
ArcelorMittal Vinton, Inc., 536 S.W.3d 19, 23
(Tex. App.--El Paso
2016, pet. denied). Two exceptions exist, criminal activity,
which does not apply in this case, and necessary use, which
plaintiffs allege does apply. Doc. 12 at 4, , 11. The necessary
use exception, derived from Parker v. Highland Park, Inc., 565
S.W.2d 512
(Tex. 1978), applies when the invitee must use the
unreasonably dangerous premise condition and the landowner should
have anticipated that the invitee was unable to avoid the
unreasonable risks associated with the condition despite his
awareness thereof. Austin, 465 S.W,3d at 206-07; Wallace, 536
S.W,3d at 24-25.
In this case, the summary judgment evidence establishes that
the cliff edge was open and obvious and known to Cromwell, who
had worked for defendants at the Cliffs for fifteen years.
Further, defendants had warned Cromwell not to go near the cliff
edge and he had acknowledged the danger and that he would not go
near it. Defendants did not require that Cromwell work outside
the fence, but Cromwell himself decided to weed whack around the
swing outside the fence. The swing was not near the cliff edge
and working around it did not place Cromwell in a position of
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danger. And, in any event, Cromwell could have used a harness or
safety device but did not.
In their second ground, defendants argue that plaintiffs
cannot establish proximate cause, which requires a showing of
cause in fact and foreseeability. Del Lago Partners, Inc. v.
Smith, 307 S.W.3d 727, 774
(Tex. 2010). The summary judgment
evidence shows that plaintiffs have nothing more than conjecture,
guess, or speculation as to what caused Cromwell to fall to his
death. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820
(Tex. 2002).
There is no evidence that the death would not have occurred but
for defendants' breach of duty. Lenger v. Physician's Gen. Hosp.,
Inc., 455 S.W.2d 703, 706
(Tex. 1970).
Finally, defendants have shown that they did not own,
occupy, or possess the cliff edge. Cty. Of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002). The cliff edge is beyond the
boundary of defendants' property and plaintiffs have not shown
that defendants controlled the area. Defendants' duty did not
extend beyond the limits of their control. Dixon v. Houston
Raceway Park, Inc., 874 S.W.2d 760, 762
Dist.]
1994, no writ).
7
(Tex. App.--H6uston [1st
v.
Order
The court ORDERS that defendants' motion for summary
judgment be, and is hereby, granted; that plaintiffs take nothing
on their claims against defendants' and, that plaintiffs' claims
be, and are hereby, dismissed.
SIGNED March 22, 2018.
'ct Judge
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