Opinion
No. 01-03-00275-CV
Opinion issued July 15, 2004.
On Appeal from the 333rd District Court, Harris County, Texas, Trial Court Cause No. 2002-17,985.
Howard R. King, Hill, Angel King, L.L.P., Houston, TX, for appellant.
Thomas J. Fischer, Houston, TX, and Richard Simmons, Cokinos, Bosien Young, Houston, TX, for appellee.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
This is an appeal from a summary judgment in favor of appellee, Joe H. Phipps, and against appellants, Erik Olufsen, Niels Olufsen, and Jane Olufsen. In two issues on appeal, appellants contend the trial court erred in giving appellee more summary judgment relief than requested by granting summary judgment on a claim to which appellee did not raise a ground for summary judgment.
We affirm.
Facts and Procedural History
On April 19, 2000, Erik Olufsen drank a number of whiskey shots at a friend's duplex apartment. Erik's friend had rented the duplex from appellee. After drinking the whiskey, Erik fell off his friend's porch and suffered paralyzing injuries.
Appellants — who consist of Erik and his parents — sued appellee, University Rentals Renters Services, Inc. ("University Rentals"), and Erik's friend, Jeremy Parra, asserting the following:
LIABILITY
8. The accident in question and the severe, permanent, and disabling injuries of Erik Olufsen, as well (sic) the damages suffered by his parents, Niels Olufsen and Jane Olufsen were proximately caused by the negligence of the Defendants.
9. Defendants UNIVERSITY RENTAL RENTERS SERVICES, INC. And JOE PHIPPS were negligent in at least the following respects:
(A) Failing to prohibit and/or control the use of alcohol by minors on the premises they owned, controlled and leased to students of Baylor University for a profit;
(B) Failing to implement policies and procedures to prohibit and/or control the use and consumption of alcohol by minors who were students of Baylor University on premises these Defendants owned, operated, controlled and leased to students of Baylor University for a profit;
(C) Failing to enforce policies and procedures designed to prohibit and/or control the use and consumption of alcoholic beverages by minors who were students of Baylor University on premises these Defendants owned, operated, controlled and leased to students of Baylor University for a profit;
(D) Ignoring the zero tolerance policies and procedures pertaining to alcohol consumption that are applicable to students of Baylor University on its campus when such conduct was conducive to the profit motives of the Defendants in the leasing of premises they owned, controlled and/or operated to students of Baylor University;
(E) Failing to enforce the written policies and procedures of these Defendants pertaining to the use of alcohol and intoxicating substances by minors on properties these Defendants owned, controlled and/or operated; and
(F) Failing to take those actions a reasonably prudent owner and/or operator of residential rental properties would take under the same or similar circumstances.
10. In fact, the foregoing specified conduct of Defendants UNIVERSITY RENTALS RENTERS SERVICES, INC. and JOE PHIPPS was not only negligent but was the result of a conscious and/or reckless disregard for the safety, welfare and health of the Plaintiff, as well as the safety welfare and rights of other minors who were students at Baylor University.
After answering, appellee and University Rentals filed a joint motion for summary judgment, raising three grounds. The first summary judgment ground asserted the following:
There is no social host liability in Texas. Courts refuse to shift legal responsibility from the alcohol consuming guest to the host. In the case at hand, Plaintiffs seek to impose liability not only on the host serving alcohol, but Plaintiffs seek to stretch their claims even further to the premises owner, who has no relationship to this incident. Premises owners owe no duty to individuals who consume alcohol on their premises. Therefore, Defendants are entitled to summary judgment because they owed Plaintiffs no duty. (internal citations omitted).
The second summary judgment ground asserted that appellants' claims against University Rentals failed, as a matter of law, because University Rentals did not own an interest in the premises where Erik was injured. The final summary judgment ground — a "no evidence" ground — asserted that no evidence existed showing that appellee knew Erik would consume alcohol on the premises and injure himself.
The trial court granted appellee summary judgment as to all appellants' claims and severed appellee from the underlying suit, making the judgment final.
Proper Scope of Summary Judgment
In two issues on appeal, appellants contend the trial court erred in rendering a complete summary judgment in favor of appellee because appellee's motion for summary judgment did not address one of appellants' claims ( viz., negligent undertaking). Thus, appellants contend, the trial court granted more relief than was requested in the motion. Conversely, appellee contends that appellants' petition did not raise a negligent undertaking claim; therefore, he was not required to raise a ground as to negligent undertaking to be entitled to summary judgment relief as to appellants' entire suit.
Because appellants' argument on appeal is limited to the question of whether appellee raised a ground for summary judgment as to a negligent undertaking claim, we must first determine whether such a claim was raised in appellants' petition.
As a general rule, this Court does not give a confined reading to a petition and will uphold a petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged. Reed v. Israel Nat'l Oil Co., Ltd., 681 S.W.2d 228, 234 (Tex. App.-Houston [1st Dist.] 1984, no writ). Furthermore, when there are no special exceptions, a petition will be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). Nonetheless, a petition must give fair and adequate notice of the claims asserted so that the opposing party has information sufficient to enable him to prepare a defense. See id. at 810.
To establish a negligent undertaking claim, a plaintiff must show (1) the defendant gratuitously undertook to perform services that it knew or should have known were necessary for the plaintiff's protection, (2) the defendant failed to exercise reasonable care in performing those services, and (3) the plaintiff relied upon the defendant's performance or the defendant's performance increased the plaintiff's risk of harm. Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex. 2000).
Appellant's petition failed to identify any specific endeavor in which appellee was engaged for Erik's protection. It follows that it also failed to allege facts showing how appellee did not use reasonable care when performing any such affirmative act. Moreover, nowhere in appellants' petition do they allege that Erik in any way relied upon appellee's performance of an affirmative act gratuitously performed for his benefit.
There was nothing contained in appellants' petition that gave fair notice to appellee that appellants were seeking to recover under a negligent undertaking cause of action. Therefore, appellants' petition did not raise a cause of action for negligent undertaking and appellee was not required to raise a ground for summary judgment in regard to negligent undertaking for the trial court to grant a complete summary judgment. We hold that the trial court did not grant appellee more summary judgment relief than requested.
We overrule both of appellants' issues on appeal.
Conclusion
We affirm the judgment of the trial court.