Craig Thomas, Karen Thomas, Kaitlin Thomas and Caroline Thomas v. CNC Investments, L.L.P.

Opinion issued May 31, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00838-CV

CRAIG THOMAS, KAREN ANN THOMAS, KAITLIN JADE THOMAS,

and CAROLINE ANGELENE THOMAS, Appellants

V.

CNC INVESTMENTS, L.L.P, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2004-32012

O P I N I O N

Appellants, Craig Thomas, Karen Ann Thomas, Kaitlin Jade Thomas, and

Caroline Angelene Thomas, appeal from a take-nothing summary judgment rendered

upon the motion of appellee, CNC Investments, L.L.P. ("CNC"). We determine

whether the trial court erred by granting CNC's motion for summary judgment on

appellants' causes of action against CNC for vicarious liability for assault, premises

liability, and negligent hiring. We affirm the judgment of the trial court.

Background

On July 29, 2002, Darrell Gordon, a Harris County Sheriff's deputy, was

working an extra job at the Oaks of Woodforest apartment complex. (1) At about 12:15

a.m., Deputy Gordon requested assistance from Craig Thomas and Toby Kroger, (2) who

were also Harris County Sheriff's deputies, to conduct a property inspection of the

complex because Deputy Gordon was working alone that night. Deputies Thomas

and Kroger were both off duty, working an extra job at another apartment complex

in the area, and agreed to help Deputy Gordon patrol the Oaks of Woodforest

apartment complex. While the deputies were patrolling the complex, a tenant gave

them a tip about a stolen Dodge Durango in the apartment complex parking lot.

During their patrol of the apartment complex, the deputies saw a Dodge Durango

matching the informant's description of the stolen vehicle . Deputies Gordon and

Kroger approached the driver of the Dodge Durango. The suspect started to drive

away, and Deputies Gordon and Kroger shouted, "Sheriff's Department. Stop the

vehicle. Stop the vehicle." The suspect revved the truck's engine and drove past

Deputies Kroger and Gordon toward Deputy Thomas. Deputy Thomas turned his

flashlight on himself "so that [the driver] could see that [Deputy Thomas] had a badge

and 'Sheriff' across [his] chest." When the suspect continued to accelerate toward

Deputy Thomas, all of the deputies fired shots at the driver. Deputy Thomas fired

shots first, then Deputies Kroger and Gordon fired several shots. The suspect ran

over Deputy Thomas. At some point while Deputy Gordon was shooting at the

suspect, he accidentally shot Deputy Thomas in the leg. While the suspect was

driving away, Deputy Kroger fired four more rounds, shooting the suspect in the back

of the neck.

Appellants sued CNC, the company that paid Deputy Gordon to patrol the Oaks

of Woodforest apartment complex. In their petition, appellants alleged that (1) CNC

was vicariously liable for Deputy Gordon's assault of Deputy Thomas, i.e. , Deputy

Gordon's reckless discharge of his firearm, which injured Deputy Thomas; (2) CNC

had a duty to use ordinary care to protect Deputy Thomas against an unreasonable and

foreseeable risk of harm from the criminal acts of third parties on its premises because

CNC failed to have adequate security and to maintain the access gate at its apartment

complex; and (3) CNC did not use ordinary care in determining whether Deputy

Gordon was competent to be hired to patrol its premises.

In its answer, CNC entered a general denial and pleaded that (1) CNC was not

vicariously liable because Deputy Gordon was acting as a public-safety officer when

he accidentally shot Deputy Thomas, (2) CNC was not vicariously liable because

Deputy Gordon was an independent contractor and not its employee, (3) Deputy

Thomas was barred from recovering damages for injuries on its premises under the

"firefighter's rule," (4) CNC was not liable for Deputy Thomas's injuries on its

premises because his injuries were the cause of third parties beyond its control, and

(5) Deputy Thomas's recovery should be reduced or barred under the doctrine of

proportionate responsibility.

CNC moved for traditional summary judgment on appellants' assault cause of

action on the grounds that (1) CNC was not vicariously liable because Deputy

Gordon was acting as a public-safety officer when he shot Deputy Thomas and (2)

CNC was not vicariously liable because Deputy Gordon's conduct was negligent, not

intentional, and, therefore, CNC could not be held liable for its independent

contractor's negligence. (3)

CNC moved for traditional summary judgment against appellants' premises-

liability (4) cause of action on the grounds that (1) Deputy Thomas was barred from

recovering for his injuries on its premises under the "firefighter's rule"; (2) CNC's

failure to have an additional off-duty Sheriff's deputy on the premises was not the

proximate cause of Deputy Thomas's injuries; (3) CNC's failure to maintain the

access gate on the premises was not the proximate cause of Deputy Thomas's injuries;

and (4) Deputy Thomas was a licensee who had actual knowledge of the danger of

criminal activity at the complex, and, therefore, CNC did not have a duty to Deputy

Thomas.

CNC moved for traditional summary judgment against appellants' negligent-hiring cause of action on the ground that CNC did not breach any duty because it had

used ordinary care in hiring Deputy Gordon to do security work because he was a

Sheriff's deputy. CNC moved for no-evidence summary judgment against appellants'

negligence-hiring cause of action on the ground that there was no evidence that

Deputy Gordon was not qualified to do security work.

On August 5, 2005, the trial court granted CNC's motion for summary

judgment. The trial court did not specify on what basis it rendered summary

judgment. On August 22, 2005, the trial court signed a final judgment dismissing all

of appellants' claims against CNC. Standard of Review and Burdens of Proof

The propriety of summary judgment is a question of law, and we thus review

the trial court's ruling de novo. Provident Life & Accident Ins. Co. v. Knott , 128

S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, evidence favorable

to the non-movant is taken as true, and all reasonable inferences are indulged in the

non-movant's favor. Johnson County Sheriff's Posse v. Endsley , 926 S.W.2d 284,

285 (Tex. 1996). When a summary-judgment order does not state the grounds upon

which it was granted, the summary judgment may be affirmed on any of the movant's

theories that has merit. Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 627 (Tex.

1996). Appellate courts should consider all grounds for summary judgment that the

movant presented to the trial court when they are properly preserved for appeal. Id.

at 625 . Thus, the party appealing from such a judgment must show that each of the

independent arguments alleged in the motion is insufficient to support the order.

Tilotta v. Goodall , 752 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1988, writ

denied); McCrea v. Cubilla Condo. Corp. , 685 S.W.2d 755, 757 (Tex.

App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

The movant for traditional summary judgment has the burden of showing that

there is no genuine issue of material fact and that he is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo , 909

S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548

(Tex. 1985). A defendant moving for traditional summary judgment must either

disprove at least one element of each of the plaintiff's causes of action or

conclusively establish each essential element of its affirmative defense, thereby

rebutting the plaintiff's causes of action. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex.

1995).

A no-evidence motion for summary judgment is essentially a directed verdict

granted before trial, to which we apply a legal-sufficiency standard of review. King

Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750-51 (Tex. 2003). In general, a party

seeking a no-evidence summary judgment must assert that no evidence exists as to

one or more of the essential elements of the non-movant's claims on which the

non-movant would have the burden of proof at trial. Flameout Design & Fabrication,

Inc. v. Pennzoil Caspian Corp. , 994 S.W.2d 830, 834 (Tex. App.--Houston [1st

Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no

evidence, the burden shifts to the non-movant to raise a fact issue on the challenged

elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be

sustained on appeal when (1) there is a complete absence of evidence of a vital fact,

(2) the court is barred by rules of law or of evidence from giving weight to the only

evidence offered by the non-movant to prove a vital fact, (3) the evidence offered by

the non-movant to prove a vital fact is no more than a scintilla, or (4) the non-movant's evidence conclusively establishes the opposite of a vital fact. King Ranch ,

118 S.W.3d at 751 .

Summary Judgment

In seven issues, appellants argue that the trial court erred by granting CNC's

motion for summary judgment on their causes of action against CNC for vicarious

liability for assault, premises liability, and negligent hiring.

A. Vicarious Liability for Assault

In issues one and two, appellants argue that the trial court erred by granting

CNC's traditional motion for summary judgment on their assault cause of action

against CNC. In issue one, appellants argue that the trial court erred by granting

CNC's motion for traditional summary judgment on the ground that CNC was not

vicariously liable because Deputy Gordon was acting as a public-safety officer when

he shot Deputy Thomas. In issue two, appellants argue that the trial court erred by

granting CNC's motion for traditional summary judgment on the ground that CNC

was not vicariously liable because Deputy Gordon's conduct was negligent, not

intentional, and, therefore, CNC could not be held liable for its independent

contractor's negligence.

CNC alleged in its summary-judgment motion that it was entitled to traditional

summary judgment on appellants' assault cause of action based on the theory of

respondeat superior because Deputy Gordon was acting as a public-safety officer

when Deputy Thomas was shot. To be entitled to traditional summary judgment,

CNC had to prove that there was no issue of material fact that Deputy Gordon was

performing a public duty, such as the enforcement of general laws. See Mansfield v.

C.F. Bent Tree Apartment Ltd. P'ship , 37 S.W.3d 145, 149 (Tex. App.--Austin 2001,

no pet.).

Under the doctrine of respondeat superior, an employer may be vicariously

liable for the tortious acts of an employee. St. Joseph Hosp. v. Wolff , 94 S.W.3d 513,

541-42 (Tex. 2002) (quoting Baptist Mem'l Hosp. Sys. v. Sampson , 969 S.W.2d 945,

947 (Tex. 1998)); Mansfield , 37 S.W.3d at 149 . When determining the status of an

off-duty officer, we ask, "[I]n what capacity was the officer acting at the time he

committed the acts for which the complaint is made?" Blackwell v. Harris County ,

909 S.W.2d 135, 139 (Tex. App.--Houston [14th Dist.] 1995, writ denied). If a

public-safety officer is performing a public duty, such as enforcement of general laws,

he is acting in the course and scope of his employment as a police officer, and the

private employer is not vicariously liable for the officer's actions, even if the

employer may have directed those activities. Mansfield , 37 S.W.3d at 150 ; Larkin v.

Johnson , 44 S.W.3d 188, 189-90 (Tex. App.--Houston [14th Dist.] 2001, pet.

denied); see also Blackwell , 909 S.W.2d at 139 . If an off-duty officer observes a

crime, he becomes, as a matter of law, a public-safety officer. Mansfield , 37 S.W.3d

at 150 ; City of Dallas v. Half Price Books , Records, Magazines, Inc. , 883 S.W.2d

374, 377 (Tex. App.--Dallas 1994, no writ) (explaining that public-safety officer

becomes government agent when he begins to function as one).

Appellants cite to Bridges v. Robinson to support their proposition that CNC

may be liable for injuries that Deputy Thomas sustained; however, that case did not

involve facts in which the off-duty officers had assumed, as a matter of law, the role

of public-safety officers when the event in dispute occurred. See id. , 20 S.W.3d 104,

111 (Tex. App.--Houston [14th Dist.] 2000, no pet.) (noting that if police officer is

"engaged in the protection of the employer's property, ejecting trespassers or

enforcing rules and regulations promulgated by the employer," it then becomes jury

question as to whether he was acting as public officer or as agent of private

employer). In Bridges, a Dillard's customer argued with two customer service

employees. During the argument, two salaried Dillard's security officers, who were

also Harris County Sheriff's deputies, asked the customer to provide identification

and escorted him to a back office. See id. at 108 . The summary-judgment evidence

showed that the officers hogtied the customer and rode and otherwise abused him

until he died. See id. at 109-10 . The Bridges court held that, considering the

summary-judgment evidence, it was unclear if and when those officers assumed a role

as public-safety officers; therefore, whether at material times those officers were

acting in the course and scope of their employment remained a disputed fact issue.

See id. at 110 ; see also Blackwell , 909 S.W.2d at 139 .

In cases such as Bridges , the question of the officer's role is answered by the

trier of fact. See Rucker v. Barker , 192 S.W. 528, 529 (Tex. 1917) (stating that

officer took no steps toward arrest until he consulted with his private employer); Tex.

& N.O.R. Co. v. Parsons , 113 S.W. 914, 916 (Tex. 1908) (stating that officer never

showed intent to arrest trespassers, but intended only to put them off company's

property). Compare Larkin , 44 S.W.3d at 190 (holding that trial court did not err in

granting summary judgment in favor of store when deputy, who was private security

guard for store, followed customer outside and attempted investigative stop for

suspicion of disturbing peace because he was performing duties as public-safety

officer; thus, store could not be vicariously liable for officer's actions as matter of

law); Mansfield , 37 S.W.3d at 150-51 (holding that trial court did not err in granting

summary judgment in favor of apartment complex when police officer, who was

private security guard for apartment complex, discovered visitor exposing himself at

complex because officer was performing duties as police officer at time that he

detained visitor; thus, apartment complex could not be vicariously liable for officer's

actions as matter of law); Half Price Books, Records, Magazines, Inc. , 883 S.W.2d

at 377 (holding that police officer, who was private security guard for store, ceased

being independent contractor and became on-duty police officer when he saw crime

being committed).

In this case, CNC's evidence proved that Deputy Gordon had assumed the role

of a public-safety officer prior to shooting Deputy Thomas. Deputy Gordon Deputies

Kroger and Thomas recalled that Deputy Gordon wore a "raid jacket" (5) and his badge

and verbally identified himself as "Sheriff's Department" while attempting to detain

the suspect of the suspected stolen vehicle . In criminal cases, these actions reflect

that an officer is acting in his official capacity. See Mansfield , 37 S.W.3d at 149 -50

(citing to Hafdahl v. State , 805 S.W.2d 396, 401 (Tex. Crim. App. 1990) ("[W]hen

the police officer stopped at the scene of the accident and approached appellant

shouting 'halt, halt, stop, police,' the officer was no longer off duty.") and Selvage

v. State , 680 S.W.2d 17, 21 (Tex. Crim. App. 1984) ("[The officer] assumed the role

of a peace officer when he removed his coat to identify himself as a Deputy Sheriff

and approached appellant in an attempt to deter him from wrongdoing.")). Deputy

Gordon was attempting to detain the suspect and to protect fellow officers from the

suspect when Deputy Thomas was injured. Appellants produced no evidence raising

a fact issue regarding CNC's vicarious liability for assault. The undisputed evidence

showed that Deputy Gordon was performing his public duty by investigating the

report of the stolen vehicle and attempting to detain the suspect. Accordingly, CNC

cannot be held liable for Deputy Gordon's actions while he was attempting to

apprehend the suspect and suspected stolen vehicle.

We hold that the trial court did not err in rendering traditional summary

judgment for CNC on appellants' assault cause of action on the ground that CNC was

not vicariously liable because Deputy Gordon was acting as a public-safety officer

when Deputy Thomas was injured. See Estate of Milo , 909 S.W.2d at 510 .

We overrule appellants' issue one.

We have already held that the trial court did not err in rendering traditional

summary judgment for CNC on appellants' assault cause of action. Given our

disposition on issue one, we need not reach appellants' issue two, in which appellant

argues that the trial court erred in rendering traditional summary judgment for CNC

on appellants' assault cause of action on the ground that CNC was not vicariously

liable because Deputy Gordon's conduct was negligent, not intentional, and,

therefore, CNC could not be held liable for its independent contractor's negligence.

See Cincinnati Life Ins. Co. , 927 S.W.2d at 625-26 (holding that if summary-judgment order did not specify ground or grounds on which trial court relied for its

ruling, appellate court must affirm summary judgment if any theory that movant

advanced has merit).

B. Premises Liability

In issues three, five, six, and seven, appellants argue that the trial court erred

by granting CNC's motion for summary judgment on their premises-liability cause

of action.

In issue three, appellants argue that the trial court erred by granting CNC's

motion for summary judgment on the ground that Deputy Thomas was barred from

recovering for his injuries on its premises under the "firefighter's rule." In issue five,

appellants argue that the trial court erred by granting CNC's motion for summary

judgment on the ground that CNC's failure to have an additional off-duty Sheriff's

deputy on its premises was not the proximate cause of Deputy Thomas's injuries. In

issue six, appellants argue that the trial court erred by granting CNC's motion for

summary judgment on the ground that CNC's failure to maintain the access gate on

the premises was not the proximate cause of Deputy Thomas's injuries. In issue

seven, appellants argue that the trial court erred by granting CNC's motion for

summary judgment on the ground that Deputy Thomas was a licensee who had actual

knowledge of the criminal activity at the complex, and, therefore, CNC did not breach

its duty to Deputy Thomas.

CNC alleged in its summary-judgment motion that it was entitled to traditional

summary judgment on appellants' premises-liability cause of action on the ground

that Deputy Thomas was barred from recovering for his injuries under the

"firefighter's rule" because Deputy Thomas's injuries resulted from a risk inherent

to a police officer detaining a suspect of the stolen vehicle. Appellants argued in their

response to CNC's motion for summary judgment that Deputy Thomas was excepted

from the "firefighter's rule" because his injuries were caused by wanton, willful, or

intentional behavior or acts of negligence occurring after Deputy Thomas had reached

the scene. Appellants also argued that CNC owed Deputy Thomas a duty as an

invitee, not a licensee, because Deputy Thomas was conducting business for the Oaks

of Woodforest by assisting Deputy Gordon in his extra-job patrol on CNC's property.

1. Law

A negligence cause of action requires proof that (1) the defendant owed a legal

duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach

proximately caused the plaintiff's injury. D. Houston, Inc. v. Love , 92 S.W.3d 450,

454 (Tex. 2002). The threshold issue in a negligence action is duty. Greater Houston

Transp. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990). The existence of a legal duty

is a question of law unless the facts giving rise to the duty are disputed. Fort Bend

County Drainage Dist. v. Sbrusch , 818 S.W.2d 392, 395 (Tex. 1991); see Praesel v.

Johnson , 967 S.W.2d 391, 394 (Tex. 1998) .

The decision to impose a legal duty involves complex considerations of public

policy, including social, economic, and political questions and their application to the

particular facts at hand. Praesel, 967 S.W.2d at 397 ; Graff v. Beard , 858 S.W.2d 918,

920 (Tex. 1993). In deciding whether to impose a duty on a particular defendant,

courts 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 that burden on the actor. Praesel , 967 S.W.2d at 397 ;

Otis Eng'g Corp. v. Clark , 668 S.W.2d 307, 309 (Tex. 1983). Other proper

considerations include whether one party would generally have superior knowledge

of the risk or a right to control the actor who caused the harm. Praesel, 967 S.W.2d

at 397-98 ; Graff v. Beard , 858 S.W.2d at 920 . Of these, the foremost consideration

is the foreseeability of the risk. El Chico Corp. v. Poole , 732 S.W.2d 306, 311 (Tex.

1987).

In cases involving public-safety officers, Texas courts typically have applied

the duties owed to an ordinary licensee, including the duty to warn of known,

dangerous conditions. (6) See Campus Mgmt., Inc. v. Kimball , 991 S.W.2d 948, 950-51

(Tex. App.--Fort Worth 1999, pet. denied). Under the common-law "firefighter's

rule," firefighters and police officers are barred from recovering in premises-liability

cases for injuries that result from risks inherent in responding to an emergency if the

injuries are caused by only ordinary negligence. See Peters v. Detsco, Inc. , 820

S.W.2d 38, 40 (Tex. App.--Houston [14th Dist.] 1991, writ denied); see also

Houston Belt & Terminal Ry. Co. v. O'Leary , 136 S.W. 601, 605-06 (Tex. Civ. App.

1911, writ ref'd); Juhl v. Airington , 936 S.W.2d 640, 647 (Tex. 1996) (Gonzalez, J.,

concurring) . The purpose of the rule is to limit the recovery of firefighters and police

officers so that citizens will not be discouraged from relying on the skill, training, and

expertise of these public servants. Juhl , 936 S.W.2d at 647 . Two exceptions to the

firefighter's rule exist: when the licensor commits wanton, willful, or intentional

behavior and when acts of negligence occur after the public-safety officer reaches the

scene. See Airington v. Juhl , 883 S.W.2d 286, 291 (Tex. App.--El Paso 1994) (citing

Rosa v. Dunkin' Donuts of Passaic , 583 A.2d 1129, 1133-34 (1991)), rev'd on other

grounds , 936 S.W.2d 640 (Tex. 1996).

The duty owed by a licensor to a licensee is not to injure him by willful

conduct, by wanton conduct, or through gross negligence. Wal-Mart Stores, Inc. v.

Miller , 102 S.W.3d 706, 709 (Tex. 2003) (citing State v. Tennison , 509 S.W.2d 560,

562 (Tex. 1974)). An exception to this general rule occurs when the licensor has

knowledge of a dangerous condition, and the licensee does not, a duty is owed on the

part of the licensor either to warn the licensee of the dangerous condition or to make

the condition reasonably safe. Id. at 709 . If the licensee has the same knowledge

about the dangerous condition as the licensor, then no duty to the licensee exists. Id.

Further, a licensor owes no duty to warn a licensee or to make the condition

reasonably safe if the evidence conclusively establishes that the licensee perceived

the alleged dangerous condition. Id.

2. Analysis

To be entitled to traditional summary judgment, CNC had to prove that there

was no issue of material fact that Deputy Thomas was acting as a public-safety officer

when he was injured; Deputy Thomas's injuries resulted from risks inherent in

responding to an emergency; CNC did not breach its duty to warn Deputy Thomas of

known, dangerous conditions; and Deputy Thomas's injuries were not caused by

either CNC's wanton, willful, or intentional behavior or CNC's acts of negligence

occurring after Deputy Thomas reached the scene. See Juhl , 936 S.W.2d at 647

(Gonzalez, J., concurring); Houston Belt & Terminal Ry. Co. , 136 S.W. at 605-06;

Peters , 820 S.W.2d at 40 ; see also Airington , 883 S.W.2d at 291 (citing Rosa , 583 at

1133-34).

The evidence conclusively shows that Deputy Thomas was acting as a public-safety officer and that his risk of injury was inherent in responding to the emergency,

such as a suspect's fleeing in a stolen vehicle and threatening to cause serious bodily

injury to a police officer with the car. Deputy Thomas was shot by Deputy Gordon

and run over by the suspect while investigating the report of a stolen vehicle and

attempting to detain the suspect. Deputy Thomas was wearing departmental issued

uniform pants, his raid vest that said "Sheriff" across the front and back, and his

Sheriff's badge. While attempting to apprehend the suspect, Deputy Thomas "turned

the flashlight on myself so that [the suspect] could see that I had a badge and 'Sheriff'

across my chest." Deputy Thomas received workers' compensation benefits from the

Harris County Sheriff's Department as a result of the injuries that he sustained.

Appellants argue in issue seven that CNC owed Deputy Thomas the duties

owed to an invitee, not a licensee. Specifically, appellants argue that it is a "disputed

fact issue" as to whether Deputy Thomas was an invitee or a licensee because Deputy

Gordon requested that Deputies Thomas and Kroger assist him "in making rounds for

the purpose of protecting CNC's property." We disagree. The above-referenced

evidence conclusively shows that Deputy Thomas was acting as a public-safety

officer and that his risk of injury was inherent in responding to the emergency. (7) Cf.

Mansfield , 37 S.W.3d at 150 (holding that if off-duty officer observes a crime, he

becomes, as matter of law, on-duty officer); Half Price Books , Records, Magazines,

Inc. , 883 S.W.2d at 377 (explaining that public-safety officer becomes government

agent when he begins to function as one). Accordingly, CNC owed Deputy Thomas

the duties owed to a licensee. See Campus Mgmt., Inc. , 991 S.W.2d at 950-51

(recognizing that, in cases involving public-safety officers, Texas courts typically

have applied duties owed to ordinary licensee, including duty to warn of known,

dangerous conditions).

The evidence also conclusively shows that CNC did not breach its duty to warn

Deputy Thomas of known , dangerous conditions and that Deputy Thomas's injuries

were not caused by CNC's wanton, willful, or intentional behavior or CNC's acts of

negligence occurring after he reached the scene, but, rather, by the criminal acts of

a third party. Cf. Timberwalk Apts. v. Partners Cain , 972 S.W.2d 749, 756 (Tex.

1998) (holding that, generally, owner has no legal duty to protect another from

criminal acts of third party; however, owner owes duty to those who may be harmed

by criminal acts on owner's premises when risk of criminal conduct is so great that

it is both unreasonable and foreseeable); Centeq Rlty., Inc. v. Siegler , 899 S.W.2d

195, 197 (Tex. 1995). Indeed, to hold CNC liable for Deputy Thomas's injuries

resulting from risks inherent in responding to an emergency goes against the nature

of the service provided by police officers, i.e., police officers are employed to protect

the public and to enforce laws. See Farmer v. B & G Food Enters., Inc. , 818 So.2d

1154, 1159 (Miss. 2002) (recognizing that societal expectations supporting

firefighter's rule turn on fact that public hires, trains, and compensates police officers

to deal with dangerous, but inevitable, situations) ; Kreski v. Modern Wholesale Elec.

Supply Co. , 415 N.W.2d 178, 187 (Mich. 1987); see also Pinter v. Am. Family Mut.

Ins. Co. , 613 N.W.2d 110, 117 (Wis. 2000) (stating, "Fundamentally, [the

firefighter's rule] is an expression of public policy because it prohibits a [public-safety officer] from 'complaining about the negligence that creates the very need for

his or her employment.'"). Deputy Thomas admitted, "I feel that all police work is

unsafe." The undisputed evidence showed that Deputy Thomas was aware of the

criminal activity at the Oaks of Woodforest apartment complex and had made arrests

personally for aggravated assault with a deadly weapon on that property.

Based on the undisputed summary-judgment evidence, we hold that CNC owed

Deputy Thomas the duties owed to a licensee and that CNC was entitled to traditional

summary judgment on appellants' premises-liability cause of action on the ground

that Deputy Thomas was barred from recovering for his injuries on its premises under

the firefighter's rule. See Estate of Milo , 909 S.W.2d at 510 .

Accordingly, we overrule appellants' issues three and seven.

We have already held that the trial court did not err in rendering traditional

summary judgment for CNC on appellants' premises-liability cause of action. Given

our disposition on issues three and seven, we need not reach appellants' issue five,

arguing that the trial court erred in rendering traditional summary judgment for CNC

on appellants' premises-liability cause of action on the ground that CNC's failure to

have an additional off-duty Sheriff's deputy on its premises was not the proximate

cause of Deputy Thomas's injuries, or issue six, arguing that the trial court erred in

rendering traditional summary judgment for CNC on appellants' premises-liability

cause of action on the ground that CNC's failure to maintain the access gate on the

premises was not the proximate cause of Deputy Thomas's injuries. See Cincinnati

Life Ins. Co. , 927 S.W.2d at 625-26 (holding that if summary-judgment order did not

specify ground or grounds on which trial court relied for its ruling, appellate court

must affirm summary judgment if any theory that movant advanced has merit).

C. Negligent Hiring

In issue four, appellants argue that, with respect to their negligent-hiring cause

of action, the trial court erred by granting CNC's motion for summary judgment on

the ground that CNC did not breach any duty because it had used ordinary care in

hiring Deputy Gordon to do security work.

CNC alleged in its summary-judgment motion that there was no evidence on

the breach-of-duty element of appellants' negligent-hiring cause of action. See Tex.

R. Civ. P. 166a(i). The burden then shifted to appellants to present "more than a

scintilla of probative evidence to raise a genuine issue of material fact." See Forbes

Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 172 (Tex. 2003). More than a

scintilla of evidence exists when the evidence is enough to allow "reasonable and

fair-minded people to differ in their conclusions." Id. Therefore, to defeat CNC's no-evidence motion for summary judgment, appellants had to present the court with

some evidence on the breach-of-duty element on the negligent-hiring cause of action. To prosecute their claim of negligent hiring successfully, appellants were

required to show (1) that CNS owed a legal duty to protect Deputy Thomas from

Deputy Gordon's action and (2) that Deputy Thomas sustained damages proximately

caused by CNC's breach of that legal duty. Houser v. Smith , 968 S.W.2d 542, 544

(Tex. App.--Austin 1998, no pet.); see also Peek v. Equip. Serv., Inc. , 906 S.W.2d

529, 534 (Tex. App.--San Antonio 1995, no writ) (holding that basis of

responsibility for negligent hiring is master's own negligence in hiring or retaining

an incompetent servant whom the master knows or by exercise of reasonable care

should have known was incompetent or unfit, thereby creating unreasonable risk of

harm to others). The duty of the employer extends only to prevent the independent

contractor from causing physical harm to a third party. Verinakis v. Med. Profiles,

Inc. , 987 S.W.2d 90, 97-98 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

The components of proximate cause are cause in fact and foreseeability. Doe

v. Boys Clubs of Greater Dallas, Inc ., 907 S.W.2d 472, 477 (Tex. 1995). These

elements cannot be established by mere conjecture, guess, or speculation. McClure

v. Allied Stores of Tex., Inc. , 608 S.W.2d 901, 903 (Tex. 1980). The test for cause in

fact is whether the negligent "act or omission was a substantial factor in bringing

about injury," without which the harm would not have occurred. Prudential Ins. Co.

v. Jefferson Assocs ., Ltd. , 896 S.W.2d 156, 161 (Tex. 1995); see Havner v. E-Z Mart

Stores, Inc. , 825 S.W.2d 456, 458-59 (Tex. 1992); Brown v. Edwards Transfer Co. ,

764 S.W.2d 220, 223 (Tex. 1988). Cause in fact is not shown if the defendant's

negligence did no more than furnish a condition that made the injury possible. See

Bell v. Campbell , 434 S.W.2d 117, 120 (Tex. 1968). Therefore, to prevent summary

judgment on the asserted basis, Deputy Thomas had to produce more than a scintilla

of evidence that CNC's actions in hiring Deputy Gordon were the cause in fact of his

injuries and that Deputy Gordon's shooting Deputy Thomas and Deputy Thomas's

resulting injuries were a foreseeable consequence of CNC's hiring of Deputy Gordon.

See Houser v. Smith , 968 S.W.2d 542, 544 (Tex. App.--Austin 1998, no pet.).

Appellants contend that Deputy Gordon's recklessly firing a gun was

foreseeable because CNC had hired Deputy Gordon to protect its property with

deadly force and CNC did not make an inquiry into Deputy Gordon's qualifications

or training. Appellants argue that Deputy Gordon was not "qualified" as a patrol

deputy for the Sheriff's Department and that he was qualified only to work in the

capacity of a jailer. The summary-judgment evidence showed that the Sheriff's

Department's policy did not prohibit deputies who were not patrol deputies from

providing security at apartment complexes. Indeed, Lieutenant Kenneth Meloncon,

the Sheriff's Department's extra-jobs coordinator, informed Deputy Gordon of the

Oaks of Woodforest assignment, and the Sheriff's Department approved and issued

a permit for Deputy Gordon's extra-job assignment at that apartment complex.

In addition, the summary-judgment evidence showed that Deputy Gordon had

had the same Sheriff's academy training as a patrol officer. Deputy Gordon was

instructed in academy training when to shoot tactically and when the use of deadly

force was permissible. Appellants produced Deputy Thomas's deposition testimony,

in which he testified that Deputy Gordon had had difficulty qualifying with his

firearm. However, Deputy Thomas admitted that he had no personal knowledge of

Deputy Gordon's firearm test or documentation showing that Deputy Gordon was not

qualified to use a firearm. (8) This is nothing more than a scintilla of evidence that

Deputy Gordon's recklessly firing a gun was foreseeable.

Even if CNC had inquired about Deputy Gordon's qualifications or training,

appellants did not produce more than a scintilla of evidence of matters that would

have caused CNC reasonably to conclude that Deputy Gordon was not qualified to

provide security at its apartment complex. See Boys Clubs of Greater Dallas, Inc. ,

907 S.W.2d at 478 (holding that if organization had investigated volunteer's criminal

record resulting information would not have caused organization reasonably to

anticipate his subsequent sexual assaults because volunteer's prior driving-while-intoxicated convictions did not indicate criminal conduct in any way akin to sexual

assault of young boys).

Additionally, appellants' assertions that CNC's procedures were inadequate are

nothing more than conclusory allegations unsupported by any evidence. Appellants

presented no summary-judgment evidence to establish industry standards for hiring

qualified security personnel. Appellants have produced no evidence that the

qualifications advocated by appellants, i.e. , that CNC should have hired only patrol

deputies as security personnel, are necessary, or that the failure to have such

qualifications constitutes negligence. See Castillo v. Gared, Inc., 1 S.W.3d 781, 786

(Tex. App.--Houston [1st Dist.] 1999, pet. denied).

In sum, appellants did not present more than a scintilla of probative evidence

to raise a genuine issue of material fact. We hold that the trial court did not err by

granting summary judgment on CNC's ground that there was no evidence on the

breach-of-duty element of appellants' negligent-hiring cause of action.

We overrule appellants' issue four.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Alcala .

1. Lieutenant Kenneth Melancon, the extra-jobs coordinator for the Harris County

Sheriff's Department, had informed Deputy Gordon of that off-duty

assignment. The Sheriff's Department approved and issued a permit for

Deputy Gordon's extra-job assignment at the Oaks of Woodforest apartment

complex.

2. Although in his deposition, this deputy's last name is spelled "Kroeger,"

appellants and CNC spell it "Kroger" in their petition, motions, and briefs.

3. In the sections of CNC's motion for summary judgment entitled "Defendant

cannot be held liable for alleged negligent acts of any peace officer in

performance of his duties" and "Defendant cannot be held liable for the

negligent acts of an independent contractor providing security services," CNC

argued grounds for summary judgment on appellants' assault cause of action.

(Emphasis added.) CNC addressed its grounds for summary judgment on

appellants' assault cause of action only under these "negligence" headings.

The trial court entered summary judgment on all of appellants' causes of

actions.

Appellants did not object or specially except that the heading was confusing

or that CNC's ground for summary judgment was unclear in the trial court . See

McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 342 (Tex. 1993)

(stating that exception is required should non-movant wish to complain on

appeal that grounds relied on by movant were unclear or ambiguous). For the

reasons stated above, we look to the substance of CNC's argument in those

sections of the motion for summary judgment as grounds for summary

judgment on appellants' assault cause of action.

4.

Appellants' live petition lists their cause of action as "negligence." In their

petition, appellants cited to Timberwalk Apartments, Partners, Inc. v. Cain and

alleged that CNC had breached its duty by failing to provide adequate security.

Id. , 972 S.W.2d 749, 754 (Tex. 1998) (holding that complaint that landowner

failed to provide adequate security against criminal conduct is ordinarily

premises-liability claim); see also Lefmark Mgmt. Co. v. Old , 946 S.W.2d 52,

53 (Tex. 1997); Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex.

1995); Exxon Corp. v. Tidwell , 867 S.W.2d 19, 21 (Tex. 1993). Accordingly,

we interpret appellants' petition as having pleaded a premises-liability cause

of action.

5. Deputy Thomas described Deputy Gordon's raid jacket in his deposition as

follows: "I remember [Deputy Gordon's] raid jacket had the sheriff's patches.

He had a patch where his--his badge patch and it had real large yellow letters

that said 'Sheriff' or 'Sheriff's Department' on the front and back."

6. In older cases, some courts also had found an additional duty--not to injure the

public-safety officer through active negligence. Houston Belt & Terminal Ry.

Co. v. Johansen , 179 S.W. 853, 853-54 (Tex. 1915); Houston Belt & Terminal

Ry. Co. v. O'Leary , 136 S.W. 601, 605 (Tex. Civ. App. 1911, writ ref'd); see

Tex. Cities Gas Co. v. Dickens , 168 S.W.2d 208, 211 (Tex. 1943); Campus

Mgmt., Inc. v. Kimball , 991 S.W.2d 948, 950-51 (Tex. App.--Fort Worth

1999, pet. denied).

7. The summary-judgment evidence shows that the suspect was convicted of

attempted capital murder and was sentenced to 55 years in prison for running

over Deputy Thomas. See Tex. Pen. Code Ann. § 19.03 (a)1 (Vernon Supp.

2006) (stating that a person commits capital murder if he commits murder as

defined under section 19.02(b)(1) and the person murders a peace officer or

fireman who is acting in lawful discharge of official duty and whom the person

knows is peace officer or fireman). Therefore, to convict the suspect of the

attempted capital murder of Deputy Thomas, the trier of fact had to find that

Deputy Thomas was a "peace officer" as defined in the Penal Code and the

Code of Criminal Procedure. The Penal Code defines "peace officer" as a

"person elected, employed, or appointed as a peace officer under article 2.12,

Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or

other law." Tex. Pen. Code Ann. § 1.07 (a)(36) (Vernon Supp. 2006). Article

2.12 of the Code of Criminal Procedure includes in its list of "peace officers":

sheriffs, their deputies, and those reserve deputies who hold a permanent peace

officer license under chapter 1701 of the Texas Occupations Code. Tex. Code

Crim. Proc. Ann. art. 2.12(1) (Vernon Supp. 2006).

8. When asked who had told him that Deputy Gordon had had difficulty

qualifying with this firearm, Deputy Thomas responded, "I can't remember. It

was just somebody--one of the officers came up and said, 'I was standing next

to Gordon out at the range and, you know, he was just missing the whole

target. He couldn't shoot at all, you know.'"