AFFIRM; Opinion Issued January 30 2013.

In The

CLuIr1 Lii Arnnth

Yiftt itrirt of at Da1ku

No, 05-1 1-01138-CV

CHERILYN GATTEN, Appellant

V.

W1NDELL MCC ARLEY AND TAMMY MCCARLEY, Appellee

On Appeal from the 366th District Court

Collin County, Texas

[I1 Court Cause No. 366-02441-2009

OPINION

Before Justices Bridges, Richter 1,and Lang

Opinion By Justice Richter

Cherilyn Gatten appeals the trial court’s final judgment dismissing her claims against

Windell McCarley and Tammy McCarley. In her sole issue, appellant contends the trial

court erred by dismissing her third amended petition against appellees, Windell McCarley

and Tammy McCarley, for failure to state a cause of action. For the reasons set forth herein,

we affinn the judgment of the trial court.

The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
BAUKGI{()UNI3

AppeIIn s husband. Ferry (jaiten, and ( iary Rosser were both employed by

appellees, Windell and Tamm McCarley. Rosser, Tammy MeCarley’ s brother. also lived

with the appellees. Windell McCarley invited Terry Gatten to a house-warming party at his

home. Appellant alleges that prior to the party. Rosser told appellees that he intended to

provoke a fight with Terry (iatten at the party. However, appellees did not inform Cherilvn

or Ferry Gatten of Rossers alleged intentions. I3efore the Gattens aITived. Rosser allegedly

assaulted an unnamed individual at the party. Appellant claims appellees knew about this

assault but did nothing to remove Rosser from their home or to make the premises safe for

other guests.

Once the Gattens arrived at the party, Rosser attempted to provoke a fight with Terry

Gatten but Terry walked away. As Cherilyn and Terry Gatten were leaving the party. Rosser

approached them from behind and struck Cherilyn in the head. Appellant alleges Rosser’s

blow caused her to fall backwards, strike the hack of her head on the concrete floor, and lose

consciousness. At this point, Terry Gatten was provoked into a fight with Rosser. After the

assault on Cherilyn Gatten and the fight with Terry Gatten, appellees ordered Rosser to leave

the premises. Appellant alleges that as a result of the blow to her head, her vision

substantially declined and she may become totally blind.

Cherilyn Gatten filed suit against Gary Rosser, Windell McCarley. and Tammy

McCarley. In her original petition, she asserted a claim against Gary Rosser for intentional

assault. She asserted negligence claims against Windell and Tammy McCarley for failing

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to warn of Rosser’s intentions, pennitting Rosser 10 be on the premises, and failing to

require Rosser to leave the premises when the Gattens arrived. Appellant amended her

petition three times. Appellees specially excepted to the first amended petition but their

exception was denied. Appellecs specially excepted to the second amended petition on the

ground that it failed to state a cause of action and their exception was sustained with leave

to amend. Cherilyn Gatten filed a third amended petition, adding claims against appellees

for wanton misconduct and gross negligence. Appeilees specially excepted to the third

amended petition, again on the ground that it failed to state a cause of action. Appellees’

special exception to the third amended petition was sustained and the causes of action

against appellees were dismissed. The dismissal was incorporated into the final judgment

once a default judgment was taken against the remaining defendant Gary Rosser. This

appeal followed.

DISCUSSION

A. STANDARD 01? REVIEW

In one issue, appellant contends the trial court erred in granting appeilees’ special

exceptionsto appellant’s third amended petition and dismissing the claims against appellees

for failure to state a cause of action. Special exceptions may be used to challenge the

sufficiency of a pleading. Friesenhalin v. Ryan, 960 S.W.2d 656,658 (Tex. 1998); flx.R.

Civ. P.91. The purpose of a special exception is to compel clarification ofpleadings when

the pleadings are not sufficiently specific or fail topl a cause of action. Baylor Univ. v.

Sonnichsen. 221 S.W.3d 632, 635 (Tex. 2007). Generally, when the trial court sustains

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‘.pecial exceptions, it must give the pleidcr an opportunity to amend the pleadings. See Id.

see also County ofCameron v. Brown. 80 S.W.3d 549, 559 (Tex. 2002). If the defect in the

pleading is not corrected by the amendment and the remaining portions of the pleading fail

to state a cause of action, the trial court may dismiss the case. l?os. r. GOl(lsteifl, 203 S.W.3d

508. 5 1 2 (Tex. App—Houston [14th DisL I 2(>06, no pet.): Cole v. Hail. 864 S.W.2d 563.

566 (Tex. App—Dallas 1993, writ dism d w.O.J.).

A trial court has broad discretion in ruling on special exceptions. See Sonnichsen,

221 S.W.3d at 635; see also West Orange—Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558,

583 (Tex. 2003). A trial courts ruling on special exceptions is reversed only if there has

been an abuse of discretion. Martin i’. Clinical PathologvLahs., Inc., 343 S.W.3d 885. 891

(Tex. App.—-Dallas 2011, pet. denied); Adams v. First Nat’i Bank of Belis/Savov, 154

S.W.3d 859. 876 (Tex. App.—Dallas 2005. no pet.). However, even under the abuse of

discretion standard, we review the trial court’s detenjiination of legal questions de novo.

Martin, 343 S.W.3d at $91; Moellerv. Blanc, 276 S.W.3d 656.660—61 (Tex. App.—Dallas

2008, pet, denied). When a trial court dismisses a case on special exceptions for failure to

state a cause of action, we review that determination of law de novo. Filip v. Till. 230

S.W.3d 197. 203 (Tex. App.—Houston [14th Dist.l 2006. no pet.); Pack v. Crossroads, Inc.,

53 S.W.3d 492, 507 (Tex. App.—Fort Worth 2001, pet. denied). We accept as true all

material factual allegations and all factual statements reasonably inferred from the

allegations set forth in Gatten’s pleadings. Sorokolit v. Rhodes. 889 S.W.2d 239, 240 (Tex.

1994); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773. 783 (Tex.

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App.—DalIas 1992. writ denied). If a pleading does not state a cause of action, the trial

court does not err in dismissing the entire case, Pack, 53 S.W.3d at 507; Cole. $64 S.W.2d

at 566.

B. APPLICABLE LAW

To prevail on her negligence causes of action, appellant was required to prove: (1)

appellees owed a legal duty to appellant; (2) appellees breached that duty; and (3) the breach

proximately caused appellant’s injury. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.

2006). Whether a duty exists is a threshold inquiry and a question of law; liability cannot

he imposed if no duty exists. Trammell Crow Cent, Tex., Ltd. ‘. Gutierrez, 267 S.W.3d 9,

12 (Tex. 2008); Loram Maint. of Way, Inc. v. lanni, 210 S.W.3d 593, 598 n.5 (Tex. 2006)

(quoting Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). “As

a general rule, a person has no legal duty to protect another from the criminal acts of a third

person or control the conduct of another.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex.

1996); see also Trammeli Crow, 267 S.W.3d at 12; Newsom v. B.B.. 306 S.W,3d 910, 913

(Tex. App.—Beaumont 2010, pet, denied).

Texas law has recognized limited exceptions to the general rule of non-liability. See

Newsom, 306 S.W.3d at 913. The existence of a special relationship may impose a duty to

control a third party’s conduct. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331

(Tex. 2008); Torrington Co. v. Stutzrnan, 46 S.W.3d 829, 837 (Tex. 2000). Examples of

relationships that have been recognized as giving rise to a duty to control include

employer/employee, parent/child, and independent contractor/contractee. See Greater

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Houston, 801 S.W.2d at 525. A defendant in control of a dangerous person may owe a duty

ot care to persons toreseeahly exposed to danger arising from the defendant’s failure to

reasonably exercise his right of control, Texas Home Mgmt., Inc. v. Peavv, 89 S.W.3d 30.

38 (Tex. 2002). However, the scope of the duty is commensurate with the right of control

and the extent of the danger. Id.

Texas courts have also determined that a party who negligently creates a dangerous

situation has a duty to attempt to prevent injury to others if it reasonably appears or should

appear that others in the exercise of their lawful rights may be injured thereby. Carter v,

Abbvad, 299 S.W.3d 892, 895 (Tex. AppAustin 2009, no pet.) (citing SrnithKline

Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995)). “However, a mere bystander

who did not create a dangerous situation generally is not required to intervene and prevent

injury to others.” Id. In determining whether appellees were under a duty, we 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 appellees. See

Texas Home Mgint.,89 S.W.3d at 33; see also Greater Houston, 801 S.W.2d at 525.

A complaint that a property ownerfailed to provide adequate security against criminal

conduct is ordinarily a premises liability claim. Timberwalk Apts., Partners, Inc. v. Cain,

972 S.W.2d 749, 753 (Tex. 1998); West v. SMG, 318 S.W.3d 430, 437—38 (Tex.

App.—Houston list Dist.1 2010, no pet.). Premises liability is a special form of negligence

where the duty owed to the plaintiff depends upon the status of the plaintiff as an invitee,

licensee, or trespasser. Titnherwalk, 972 S.W.2d at 753; Tar/or v. Louis, 349 S.W.3d 729,

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734 (Tex. App.—Houston [14th Dist.1 201 1, no peL). A social guest is generally classified

as a licensee, not an invitee. Wvckoffv. George C. Fuller Contracting Co., 357 S.W.3d 157,

164 (Tex. AppDallas 2011, no peL); McClure V. Rich, 95 S.W.3d 620, 624 (Tex.

App.—Dallas 2002, no pet.). A property owner has a duty not injure a licensee by willful,

wanton, or grossly negligent conduct and, in cases in which the property owner has actual

knowledge of a dangerous condition unknown to the licensee, to either warn the licensee of

the condition or make the condition reasonably safe, City of Dallas v. Reed, 258 S.W.3d

620, 622 (Tex. 2008); American Indus. Lif Ins. Co. v. Ruvalcaha, 64 S.W.3d 126, 134

(Tex. App.Houston [14th Dist.1 2001, pet. denied). With regard to the criminal acts of

third parties, courts consider not only whether the danger was foreseeable, but also whether

it was foreseeable that the danger would harm a particular plaintiff or one similarly situated.

See Taylor, 349 S.W.3d at 734.

C. APPLICATION OF LAW To FACTS

Appellant attempts to avoid the general rule of non-liability by persuading this Court

that appellees owed her a duty because: (1) they had control over Rosser; (2) they created

the dangerous situation by inviting appellant and her husband to their home for a party

where they knew Rosser would be present; and (3) they had prior knowledge of the Rosser’ s

intentions and could have warned appellant.

1. Control

Although appellant notes in her pleadings that Rosser was employed by appellees,

and is the brother of appellee Tammy McCarley, appellant does not contend that the

existence of a special relationship between Rosser and appellees (employer/employee or

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sibling) imposes a duty upon appellees to control Rosser’s conduct. Instead, appellant

asserts that appellees had a duty to control Rosser because they had prior knowledge of

Rosser’s intention to pick a fight with Terry Gatten and could have had Rosser removed

from their house before the Gattens arrived at the party. Appellant does not cite any

authority establishing a legal duty by social hosts to control their guests and prevent them

from inflicting injury on other guests. Texas courts have declined to impose such a duty on

social hosts. See Caner, 299 S.W.3d at 897—98; see also Graffv. Beard, 858 S.W.2d 918,

920-22 (Tex. 1993) (social hosts had no duty to prevent their intoxicated guests from

inflicting injury on others). Given the absence of a special relationship between appellees

and Rosser that imposes a duty upon appellees to control Rosser, and the lack of authority

establishing a legal duty by social hosts to control their guests, we conclude appellees had

no duty to control Rosser.

2. Creation ofDangerous Condition

Appellant also contends that by inviting appellant and her husband to their home for

a party where they knew Rosser would be present, appellees created a dangerous condition

from which they had a duty to protect appellant and her husband. A party who negligently

creates a dangeroussituation has a duty to attempt to prevent injury to othersifitreasonably

appears or should appear that others in the exercise of their lawful rights may be injured

thereby. Caner, 299 S.W.3d at 895 (citing SmithKline Beecham, 903 S.W.2d at 353).

However, the pleadings do not indicate that appellees learned of Rosser’s threat prior to

inviting Terry Gatten to the party at their home. Thus, the act ofmaking the invitation did

not create a dangerous situation. Considering only the evidence favorable to Cherilyn

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iatten and the reasonable inferences ihereirom, we [md there is no evidence that appellees

created a daneiotis situation I invitin the ( iattens to their party, knowing that Rosser

would he present at the party.

3. Premises Liability

Property owners owe a duty to those who may be harmed by the criminal activities

of others on their property only if “the injury he of such a general character as might

reasonably have been anticipated” and the injured party is “so situated with relation to the

wrongful act that injury to him or to one similarly situated might reasonably have been

toreseen.” Nixon v. Mr. Prop. Mgmt. Co., Inc.. 690 S.W.2d 546. 55 1 (Tex. 1985) (quoting

Curer v. Pure Di,strib. Coip.. 133 Tex. 31. 35. 124 S.W.2d $47. $49 (1939)). Thus, we

evaluate foreseeahil ity by considering both the torseeabihty of the particular criminal

conduct and the foreseeability that appellant or someone similarly situated would be harmed.

See Tar/or, 349 S.W.3d at 734—35. Problematically, appellant’s allegations are not specific

as to the nature of the risk posed, the foreseeability of the result, and the likelihood of injury.

The pleadings give no indication that Rosser’ s stated intention should have been taken

seriously. We know that Rosser and Cherilyn Gatten’s husband worked together but the

pleadings contain no mention of prior altercations or bad feelings between the two men. The

pleadings indicate that Rosser was unsuccessful in his first attempt to provoke a fight with

Terry Gatten. Even after Rosser attempted to provoke a fight, the Gattens remained at the

party for another two hours, apparently without incident. There is nothing in the pleadings

to suggest appellees could have foreseen that Rosser would make a second attempt to

provoke a fight with Terry Gatten. Nor is there anything in the pleadings to indicate

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appel lees could have loreseen that Rosser would strike and cause injury to Cherilyn (iatten.

Beyond general assertions that Rosser intended to provoke a fight with appellant’s husband,

the allegations do not set out what danger Rosser posed to others that appellees should have

reasonably been aware of and taken action to prevent before he actually hit Cherilyn Gatten.

There are not sufficient facts pleaded to support the imposition of a duty based on the

toreseeahility of Rosser’s ultimate actions and the perception of the likelihood of injury to

Cherilyn Gatten, Id.; see also Carter. 299 S.W.3d at 900.

4. Duty to Warn

Appellant also asserts that appellees had prior knowledge of Rosser s intentions and

had a duty to warn her, “Generally, a person’s duty to warn of a dangerous situation that the

person did not create is a moral duty, not a legal one.” Newsorn, 306 S.W.3d at 916 (citing

Buchanan v. Rose. 138 Tex. 390. 392. 159 S.W.2d 109. 110 (1942)). Superior knowledge

ot an unreasonable risk of harm presented by Rosser may justify imposing a duty on

appellees commensurate with their control of Rosser. But foreseeability alone is not

sufficient to create a duty. SmithKiine Beecham, 903 S.W.2d at 353. In this case, appellees

had no right to control the behavior of Rosser, and appellant has not identified an affirmative

act by appellees that created an unreasonable and foreseeable risk of harm to appellant.

Because liability for a criminal act committed by a third party cannot he based upon

foreseeability alone, in the absence of control or a right of control, we hold that appellees

owed no duty to prevent injury to appellant resulting from the assault committed by Rosser.

Accordingly. we conclude appellees had no duty to intervene or warn appellant that Rosser

intended to provoke a fight with her husband. See Carter. 299 S.W.3d at 895: see also

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,Vewcom, 306 S.Wd at ‘>16,

CONCLUSION

For the reasons above, we conclude the trial court did not err in granting appellees’

special exceptions to appellant’s third amended petition and dismissing the claims against

appellees for failure to state a cause ol action. We affirm the judgment of the trial court.

M\ ‘IN RICHTER

JUSTICE

111 138F.P05

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(fliitrt iii Aipca1

Fi1tI! tiitrirt nf Lcxai at Oa1Lz

JUDGMENT

(11lRlLYN (i\FTEN. Appellant

N. 05-I i-oi i3-cv V.

WINDELL MCCARLEY AND TAMMY

MCCARLEY. Appellees

Appeal Ironi the 366’ District Court of

Collin County. Texas. (Tr.Ct.No. 366-

0244 1 -2009).

Opinion delivered by Justice Richter,

Justices Bridges and Lang participating.

In accordance with this ( ‘ourfs opinion ol this date. the judgment of the trial court is

AFF1RME!). It is ORDEREI) that appellees WINDELL MCCARLEY AND TAMMY

MCCARLEY recover their costs of this appeal from appellant CHERILYN GATTEN.

Judgment entered January 30. 201 3

MA1XlN

4

RlCHTER’

PA

JUSTICE