Affirmed and Memorandum Opinion filed June 2, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00206-CV

                         WENDY CUEVA, Appellant
                                       V.
  APTDF, LTD D/B/A DEERFIELD APARTMENTS, DFAPT, INC., AND
    SANTOS TORRES A/K/A JOSE RAUDALES TORRES, Appellees

                   On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-63368

                MEMORANDUM                     OPINION

      Wendy Cueva sued APTDF, Ltd. d/b/a Deerfield Apartments and its general
partner DFAPT, Inc. (collectively, “Deerfield”) for injuries she received when a
drunken motorist drove his car through her apartment wall. Cueva challenges the
trial court’s grant of a no-evidence and traditional summary judgment in
Deerfield’s favor on her claims for premises liability and breach of contract. We
affirm.
                                    BACKGROUND

         Cueva was injured when Santos Torres drove his car through the bedroom
wall of her first floor apartment on October 22, 2011. Torres was intoxicated when
he drove from the apartment complex parking lot across a sidewalk and crashed
into Cueva’s bedroom wall. After hitting the apartment wall, Torres pushed the
accelerator in an attempt to flee but failed to put his car into reverse; instead, he
drove through the bedroom wall and pinned Cueva against the opposite wall with
his car. Torres was convicted and imprisoned for driving while intoxicated.

         Deerfield owned the parking lot and apartment complex. The lot had curb
stops along one wall that divided the apartment complex from another property;
there were no curb stops in the parking lot adjacent to Cueva’s apartment.

         Cueva continued to live in the apartment for ten months after the incident.
She did not give notice when she vacated her apartment with one month left on her
lease.

         Cueva sued Deerfield seeking damages for injuries she suffered when Torres
drove his car through her apartment bedroom. The trial court granted Deerfield’s
combined motion for no-evidence and traditional summary judgment on Cueva’s
claims for breach of contract and premises liability. The trial court’s order states in
relevant part:

            3. The Court finds there is no evidence, as alleged by Defendants.
            4. Plaintiff has not pointed out to the court evidence that raises a
               genuine issue of material fact on the essential factual elements
               to which the Defendants have directed the attention of the
               Court.
            5. As to the allegations against Defendants for breach of contract,
               Plaintiff has failed to provide evidence that Plaintiff had fully
               performed under the lease agreement, that Plaintiff did not

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               default under the terms of the lease agreement or that
               Defendants breached the lease agreement.
            6. As to the allegations against Defendants for premises liability,
               Plaintiff has failed to provide evidence that these Defendants
               owed any duty to Plaintiff to prevent Torres’ conduct or that
               Torres’ criminal conduct was foreseeable. Plaintiff has further
               failed to provide evidence that Defendants:
                  a. had actual or constructive knowledge of a condition on
                     the premises by the owner;
                  b. that the condition posed an unreasonable risk of harm;
                  c. that Defendants did not exercise reasonable care to
                     reduce or eliminate the risk; and,
                  d. that Defendants’ failure to use such care proximately
                     caused the Plaintiff’s injury.
            7. Defendant’s motion for no evidence summary judgment as to
               Plaintiff’s breach of contract and premises liability claim is
               granted.
            8. The Court after examining the summary judgment evidence on
               file with the Court at the time of the hearing and after hearing
               arguments of counsel finds that Defendants’ motion for
               traditional summary judgment as to Plaintiff’s breach of
               contract and premises liability claim is granted.
Cueva timely appealed.

                                      ANALYSIS

      Cueva contends that the trial court erred in granting Deerfield’s combined
no-evidence and traditional motion for summary judgment because (1) she
proffered evidence on each element of her premises liability claim; (2) Deerfield
failed to establish its affirmative defense of superseding criminal conduct; and (3)
she raised a fact issue on the challenged elements of her claim for breach of
contract.




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I.    Standard of Review

      We review summary judgments de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005).

      A traditional summary judgment may be granted if the motion and evidence
show there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary
judgment, we take as true all evidence favorable to the non-movant, indulge every
reasonable inference in favor of the non-movant, and resolve any doubts in the
non-movant’s favor. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). The
movant must establish entitlement to summary judgment on the issues expressly
presented to the trial court by conclusively proving all essential elements of the
cause of action or defense as a matter of law. City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

      In a no-evidence summary judgment, the movant represents that there is no
evidence of one or more essential elements of the claims for which the non-movant
bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Green v. Lowe’s Home
Ctrs., Inc., 199 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied).   We sustain a no-evidence summary judgment 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 to prove a vital
fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;
or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell
Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a
scintilla of evidence exists when the evidence is ‘so weak as to do no more than
create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118



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S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983)).

II.   Premises Liability

      Premises liability is a particular form of negligence in which the scope of the
premises owner’s duty depends on the plaintiff’s status as an invitee, licensee, or
trespasser. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

      It is undisputed on this record that Cueva was an invitee. See Parker v.
Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex. 1978); see also Restatement
(Second) of Torts § 360 (2013). Accordingly, Deerfield owed a duty to use
ordinary care to reduce or eliminate an unreasonable risk of harm created by a
premises condition about which Deerfield knew or should have known. Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). To establish liability,
Cueva must demonstrate that (1) Deerfield had actual or constructive knowledge of
some condition on the premises; (2) the condition posed an unreasonable risk of
harm; (3) Deerfield did not exercise reasonable care to reduce or eliminate the risk;
and (4) the failure to use such care proximately caused Cueva’s injuries. See
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

      Deerfield challenged each element of Cueva’s premises liability claim in its
no-evidence motion for summary judgment. For purposes of this appeal, we focus
on evidence pertaining to whether Deerfield (1) owed a duty to Cueva on this
record that was breached; and (2) proximately caused Cueva’s injuries.

      Deerfield also sought traditional summary judgment on grounds that Torres’
criminal conduct was not foreseeable.          Specifically, Deerfield raised the
affirmative defense of superseding cause and argued it could not have foreseen the
criminal actions or inebriation of Torres, over whom it had no control. Relying on


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Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998),
Deerfield contends it had no previous knowledge of Torres driving on the premises
while intoxicated, or knowledge of Torres’ drunken condition on the date of the
incident.

      A.    Duty and Superseding Cause

      While landowners owe a duty of ordinary care to invitees, they are not the
insurers of their invitees’ safety. See Del Lago Partners, Inc., 307 S.W.3d at 769.
“This question of duty turns on the foreseeability of harmful consequences, which
is the underlying basis for negligence.” Hendricks v. Todora, 722 S.W.2d 458, 460
(Tex. App.—Dallas 1986, writ ref’d n.r.e.) (citing Corbin v. Safeway Stores, Inc.,
648 S.W.2d 292, 296 (Tex. 1983)).

      Cueva asserts Deerfield owed a duty to use reasonable care to reduce or
eliminate the risk posed by the lack of curb stops in front of her building. See
Restatement (Second) of Torts §§ 360, 361 (2013). As support for her contention,
Cueva proffered evidence that Deerfield knew there were curb stops in other areas
in the apartment complex, but none in front of Cueva’s apartment. In her motion
to reconsider the trial court’s grant of summary judgment in favor of Deerfield,
Cueva attached photos showing areas where vehicles had allegedly struck
apartment buildings in the past. She argued the lack of curb stops created an
unreasonably dangerous condition and was the proximate cause of her injuries.
Deerfield contends Cueva failed to show that her harm was foreseeable.

      Multiple cases have addressed the foreseeability of harmful consequences
from out-of-control cars in parking lots adjacent to buildings occupied by invitees.
See Hendricks, 722 S.W.2d at 465 (restaurant owner owed no duty to erect parking
lot barrier preventing intoxicated driver from driving vehicle into restaurant
entrance); Watkins v. Davis, 308 S.W.2d 906, 909 (Tex. Civ. App.—Dallas 1957,
                                         6
writ ref’d n.r.e.) (“where the injury . . . results from loss of entire control and
direction of [a] . . . machine, the occurrence falls within the domain of the unusual
and extraordinary, and therefore, in contemplation of law, [of] the unforeseeable”);
see also Carpenter v. Stop-N-Go Markets of Ga., Inc., 512 So.2d 708, 709 (Miss.
1987) (convenience store owner owed no duty to erect barriers preventing vehicles
from driving through the store’s plate glass window).           Among these cases,
Hendricks is particularly instructive.

      Hendricks and another restaurant patron sued the premises owner and lessor
for injuries they sustained when an intoxicated driver drove from an adjacent
parking lot through a glass wall into the restaurant waiting area. Hendricks, 722
S.W.2d at 459. The small and congested lot provided shared parking for the
restaurant along with a liquor store; another restaurant selling alcohol; multiple
clubs; a topless bar; and a convenience store that sold alcohol. Id. at 460. The
intoxicated driver had parked in the lot, visited the topless bar, and returned to his
car just before the accident occurred. Id. The driver was convicted of aggravated
assault. Id.

      A six-inch concrete curb separated the parking lot from the restaurant
waiting area. Id. Relying on deposition testimony from a security guard, the
injured restaurant patrons argued that the restaurant should have erected a barrier
to prevent intoxicated drivers in the parking lot from hitting waiting restaurant
customers.

      The trial court granted traditional summary judgment in favor of restaurant
owner and lessor, and the court of appeals affirmed. As stated by the court of
appeals:     “Unquestionably, plaintiffs were invitees on the premises, and we
assume, but do not decide, that both the lessor and the lessee had the general duty
of an occupier of premises to exercise reasonable care for their safety.” Id. The

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court of appeals affirmed summary judgment because “no reasonable occupier of
land, situated as was the lessor in this case, would go to the expense of erecting
barriers around all the buildings adjacent to the parking lot to prevent such an
extraordinary and unforeseen occurrence.” Id. at 462.

      In so holding, the court noted that “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.” Id. at
461; see also Timberwalk, 972 S.W.2d at 756 (“A duty exists only when the risk of
criminal conduct is so great that it is both unreasonable and foreseeable.”). The
Hendricks court also stated: “There is evidence that no similar occurrence had
taken place in the area, and there is no evidence of any arrests of intoxicated
drivers.” Hendricks, 722 S.W.2d at 460. It concluded that no duty to erect safety
barriers in the parking lot existed, and that “the reckless act of the drunken driver
was a superseding cause of the plaintiff’s injuries.”       Id. at 462.   The court
highlighted the following factors in support of this conclusion.

          “[N]either defendant is alleged to have been guilty of any negligent
             act or omission that could have caused any harm to plaintiffs without
             the intervention of the reckless driver;”

          “[T]he reckless act appears to have been extraordinary rather than
             normal in view of the circumstances, which did not include any such
             similar reckless act in the vicinity;”

          “[T]he reckless act was independent of any situation created by either
             the lessor or the lessee and was not a normal result of any situation
             created by either of them;”

          “[T]he intervening force was due entirely to the driver’s act;”

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           “[T]he intervening act of the driver was such as to subject him to
             liability to plaintiffs;”

           “[T]he act of the driver was more than ordinarily culpable, in that it
             was reckless to the point of criminal responsibility.”

Id. Although the defendants “may have been able to realize that an intoxicated or
reckless driver might crash into the building, the risk of such an occurrence was so
slight that this unprecedented occurrence was so extraordinary that a reasonable
person would disregard it.” Id.

      Because the defendant was not in any manner responsible for the driver’s
loss of control of the vehicle, the curb-jump crash in Hendricks fell “‘within the
domain of the unusual and extraordinary, and, therefore, in contemplation of law,
of the unforeseeable.’” Id. (quoting City of Dallas v. Maxwell, 248 S.W. 667, 671
(Tex. Comm’n App. 1923, holding approved)); see also Schats v. 7-Eleven, Inc.,
128 So.2d 901, 904 (Fla. Dist. Ct. App. 1961) (“If as a matter of law such
occurrences are held to be foreseeable and therefore to be guarded against, there
would be no limitation on the duty owed by the owners of establishments into
which people are invited to enter.”); Mack v. McGrath, 276 Minn. 419, 427 (1967)
(“To erect an impregnable barrier around all of the buildings would both obstruct
normal pedestrian traffic and impose on the owners a burden completely out of
proportion to the anticipated risk.”).

      In reaching this conclusion, Hendricks addressed and distinguished McAllen
Ky. Fried Chicken No. 1, Inc. v. Leal, 627 S.W.2d 480 (Tex. App.—Corpus Christi
1981, writ ref’d n.r.e.). Leal arose from a jury verdict in favor of a restaurant
patron who was injured when a car crashed into a restaurant seating area from the
parking lot after the brakes failed. The court affirmed a judgment against the
restaurant based on the jury verdict because “we cannot say as a matter of law that
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appellant could not reasonably anticipate that an automobile might run into the
building causing the damages and injuries complained about.” Id. at 482.

      Hendricks distinguished Leal because there was no indication in Leal that
the driver’s conduct was criminal.           Hendricks, 722 S.W.2d at 464.
“[C]onsequently, there was no occasion to apply the rule that the criminal conduct
of a third person is a superseding cause.” Id.; see also Restatement (Second) of
Torts § 448 (2013). Hendricks also concluded that Leal’s holding is contrary to the
Texas Supreme Court’s holding in Maxwell. Id. (citing Maxwell, 248 S.W. at 671).
Maxwell held that injury resulting from the loss of control of a vehicle due to a
steering failure was so extraordinary as to not be reasonably foreseeable. Maxwell,
248 S.W. at 671).

      We apply Hendricks’s teaching here and reach the same conclusion.
Existing case law supports a determination that out-of-control vehicles may well be
unforeseeable depending on the circumstances. We need not reach this broader
question because additional factors highlighted in Hendricks support a conclusion
that the premises owner and lessor here did not owe a duty to protect its invitees
from a third party’s extreme and reckless criminal conduct.        Hendricks, 722
S.W.2d at 462.

      Like the driver in Hendricks, Torres was intoxicated at the time of the crash
and was convicted as a result of his criminal conduct. Id. at 463. The evidence
conclusively showed that his conduct was independent of any situation created by
Deerfield and the resulting crash was due entirely to Torres’s own recklessness.
The reckless act of Torres was a superseding cause of Cueva’s injuries.

      Although Cueva asserts other cars have hit Deerfield’s apartment buildings
in the past, there is no evidence of any occurrences similar to the one in which
Cueva was injured. Even if it is assumed that evidence proffered on a motion for
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rehearing properly could be considered, Cueva’s proffered evidence does not
indicate these prior incidents involved criminal conduct or conduct so reckless that
the vehicles penetrated the apartment walls. On this record, therefore, the risk of
cars crashing through the walls with such force as to injure an apartment dweller is
extraordinary and unforeseeable. See Hendricks, 722 S.W.2d at 462.

      After reviewing the record, we conclude the trial court properly granted
summary judgment in favor of Deerfield on the premises liability claim. There is
no evidence of circumstances giving rise to the duty advocated by Cueva; rather,
the record demonstrates unforeseeable criminal conduct by a third party. Likewise,
because Torres’s criminal conduct was a superseding cause of Cueva’s injuries
under Hendricks, traditional summary judgment in favor of Deerfield was proper.

      B. Proximate Cause

      Summary judgment also was proper because Cueva proffered no evidence
that Deefield’s asserted negligence proximately caused her injuries.

      To establish that an action or omission is the proximate cause of a plaintiff’s
injury, the plaintiff must establish both (1) foreseeability, and (2) cause in fact.
Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied). “These elements cannot be established by
mere conjecture, guess, or speculation.” Urena, 162 S.W.3d at 551 (quoting Doe
v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)).

      A defendant’s conduct is a cause in fact of a plaintiff’s injury if the
defendant’s “act or omission was a substantial factor in bringing about the injuries,
and without it, the harm would not have occurred.” IHS Cedars Treatment Ctr. Of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). Accordingly,
cause in fact is not established where the defendant’s conduct is too attenuated


                                         11
from the plaintiff’s injuries to be considered a substantial factor. See id.; see also
Ambrosio, 20 S.W.3d at 266.        Likewise, “cause in fact is not shown if the
defendant’s negligence did no more than furnish a condition that made the injury
possible.” Ambrosio, 20 S.W.3d at 266.

      Cueva relies on the deposition of Cynthia Pro, Deerfield’s property manager,
as evidence that the lack of curb stops was a cause in fact of Cueva’s injuries. In
particular, she points to the following colloquy.

      Q: Had you had curb stoppers in front of the apartments, wouldn’t it
      have stopped the car?
      ...
      A: I don’t know. Depending on how fast.
      Q: Okay.
      A: I don’t know.
      Q: But it could have slowed him down.
      A: Pardon?
      ...
      Q: Could have slowed him down. Wouldn’t you agree?
      A: I don’t agree with that. Because I - -
      Q: You don’t?
      A: - - I don’t know how fast - - how - - how fast he was - - was going
      into that wall. I mean - -
      ...
      Q: Okay.
      A: But that safety - - I mean, you can’t foresee that. You can’t.
      ...
      Q: Okay. And if you hit a curb stopper while you’re driving, could it
      stop you?
      ...
      A: It could. Depending on how fast you’re going.
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      ...
      Q: So you’re telling this jury that even if you put all these curb
      stoppers in front of the building in your apartment complex, it would
      not decrease the chances of a car hitting the building.
      A: Like I said, depending on how fast they’re going.
Pro’s testimony is not evidence that curb stops would have prevented Torres’s
vehicle from penetrating Cueva’s apartment. This testimony is not evidence of
cause in fact because cause in fact cannot be based upon mere conjecture, guess, or
speculation. See Urena, 162 S.W.3d 547 at 551. Viewing the evidence in the light
most favorable to Cueva, the evidence at most indicates that Deerfield’s failure to
provide curb stops in front of Cueva’s apartment did no more than create the
condition that enabled Torres to crash through the building and injure Cueva. See
Ambrosio, 20 S.W.3d at 266.

      This evidence also stands in contrast to the testimony offered during trial in
Leal. The evidence in Leal consisted of (1) expert testimony that a barrier would
have prevented the accident; (2) expert testimony that the restaurant’s sidewalk
was not high enough to restrain an automobile coming in at a speed of ½ mile per
hour; and (3) testimony from the defendant driver that she would not have hit the
building if the side wall had been higher, or if there had been “carstops.” See Leal,
627 S.W.2d at 482. The court concluded that the testimony of both witnesses
supported the jury’s finding of proximate cause. Id. at 483.

      There is no such evidence here.         Unlike Leal, Cueva did not present
testimony that curb stops would have prevented her injuries. Cueva presented no
evidence that Torres’s vehicle would not have crashed into Cueva’s bedroom if the
parking lot had curb stops or that Torres’s vehicle would not have jumped a curb
stop had one been present.



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       Because legal cause was negated as a matter of law, we hold the trial court
properly granted Deerfield’s no-evidence summary judgment on Cueva’s premises
liability claim.

III.   Breach of Contract

       It is undisputed that the parties entered into a valid lease agreement. In order
for Cueva to successfully assert a claim for breach of contract, she must establish:
(1) the existence of a valid contract; (2) performance or tendered performance by
Cueva; (3) breach of contract by Deerfield; and (4) damages sustained as a result
of Deerfield’s breach. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).

       In its combined no-evidence and traditional motion for summary judgment,
Deerfield argued in part that there is no evidence that Deerfield breached its
contract with Cueva. Cueva responded that Paragraph 31 of the lease agreement
obligates Deerfield to “substantially comply with all applicable laws regarding
safety, sanitation, and fair housing,” and contended that Deerfield breached this
provision because it failed to provide curb stops.

       Cueva points to the City of Houston Code of Ordinances Section 26-582 in
support of her contention. Section 26-582(a)(1) states that all parking facilities
“shall be designed to include safety barriers, protective bumpers or curbing, and
directional markers sufficient to provide safety . . . and to prevent encroachment
onto adjoining public or private property.” Houston, Tex., Code of Ordinances ch.
26, art. VII, § 26-582 (2010). This ordinance requires “all persons developing new
and redeveloping existing buildings or tracts within the city to provide sufficient
off-street parking . . .” and does not apply to properties that are not being altered or
redeveloped. Houston, Tex., Code of Ordinances ch. 26, art. VII, § 26-471 (2010).
Cueva has not proffered any evidence suggesting Deerfield’s apartment complex
                                          14
was being altered or redeveloped. Accordingly, the ordinance is inapplicable to
Deerfield. We conclude that Cueva failed to produce any evidence of a breach of
the lease agreement by Deerfield, and that the trial court’s grant of summary
judgment was therefore proper. We overrule Cueva’s third issue.

                                 CONCLUSION

       Having overruled each of Cueva’s issues on appeal, we affirm the judgment
of the trial court.




                                     /s/    William J. Boyce
                                            Justice



Panel consists of Justices Boyce, Busby, and Brown.




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