Opinion issued May 18, 2017

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00949-CV

———————————

MICHAEL HENDERSON, Appellant

V.

CC-PARQUE VIEW, LLC D/B/A PARQUE VIEW APARTMENTS, 

ASSET PLUS CORPORATION, ASSET PLUS COMPANIES, LP, 

ASSET PLUS REALTY CORPORATION, AND ASSET PLUS USA, LLC, 

Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2015-52958-A

MEMORANDUM OPINION

An independent-contractor security guard shot Michael Henderson with a 

rubber bullet during an early morning encounter in the parking lot of Henderson’s 
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apartment complex. Henderson sued his landlord, Parque View Apartments, its 

management companies, and Ranger Guard and Investigations, the security 

company that had contracted to provide security services at Parque View. 

Henderson claims that Parque View and its management (“Parque View”) breached 

(1) a duty of care in hiring and retaining the Ranger Guard that shot him and (2) a 

duty to notify apartment residents that security would be patrolling the property. 

Parque View moved for summary judgment on traditional grounds, 

contending that: (1) Ranger Guard was an independent contractor over which it

exercised no control, and thus Parque View owed no duty to Henderson with respect 

to Ranger Guard’s activities; and (2) Parque View had no duty to warn Henderson 

of the presence of armed security at the complex. The trial court granted Parque 

View’s motion. The trial court severed the summary judgment from the remaining 

claims against Ranger Guard and Henderson appeals, challenging the propriety of 

the summary judgment on both grounds. We affirm. 

Background

Parque View is a 352-unit apartment complex located in Harris County near 

the Texas Medical Center. Responding to reports of increased criminal activity in 

the area, Parque View contracted with Ranger Guard to provide private security 

services for the apartment complex. The contract between Parque View and Ranger 

Guard declares that “Ranger Guard and Investigations is an independent contractor 
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of [Parque View].” Ranger Guard warrants that its services “shall be performed by 

personnel possessing competency consistent with applicable industry standards,”

who are required to be licensed and pass screening for sex offender status, criminal 

history, and drug use. 

The contract further provides that Parque View “may, with the approval of 

Ranger Guard . . . issue written directions within the general scope of Security 

Services to be ordered. Such changes . . . may be for additional work or Ranger 

Guard . . . may be directed to change the direction of work covered by the Task 

Order, consistent with all applicable laws, but no change will be allowed unless 

agreed to by Ranger Guard . . . in writing.” The record contains no allegation or 

evidence of any change made pursuant to this provision. 

Ranger Guard assigned Dameon Roberson, who had been working for Ranger 

Guard since 2011, to provide the security services at Parque View. Roberson is a 

state-commissioned security officer. Roberson provided Ranger Guard with daily 

shift reports and lengthier incident reports when necessary to keep Ranger Guard 

informed of specific encounters that went beyond routine surveillance activities. He 

also provided copies of these reports to Parque View. For the several weeks 

preceding the September 2013 incident involving Henderson, Roberson reported:

 An occasion in which he “presented himself with arms” to the driver of 

a truck who was aggressively attempting to enter through an exit gate 

that was triggered open by a resident who was attempting to leave. 
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 An early-morning encounter with a resident that occurred when 

Roberson responded to a siren sounding in the parking lot. The resident 

refused to identify himself to Roberson and yelled and cursed at 

Roberson. Roberson approached the tenant with a telescopic baton in 

hand, and the resident retreated up the stairs and into his apartment. 

Roberson notified local police of the incident.

 An evening incident in which Roberson confronted an individual 

suspected for manually pulling the motorized exit gate open after 

having been instructed not to do so. Roberson displayed his stun baton, 

whereupon the individual left the property, identified as a resident, then 

was allowed to enter through the pedestrian gate. 

During the same period, a few residents complained to the apartment management 

office that Roberson spoke rudely or “coarsely” to them. On two occasions, 

residents who apparently were unaware that security was patrolling the premises

contacted local police to report uniformed individuals whom they believed were 

impersonating officers on the premises. Parque View, which believed it had 

previously taped notices to the residents’ doors concerning the new security 

arrangements, did so again after these police reports occurred. 

In the early hours of September 12, 2013, Henderson, a complex resident,

pulled into the parking lot. Roberson noticed the car sitting in the lot while the driver 

remained inside. He approached Henderson’s car and shined a flashlight into the 

driver’s-side window. Roberson instructed Henderson to get out of the car. 

Henderson, however, remained in his car. Roberson then aimed a gun at Henderson 
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and insisted that he get out of the car. Henderson got out of the car and entered into 

a discussion with Roberson. The parties dispute how each behaved during that

discussion. At some point, Roberson discharged his gun, shooting Henderson in the 

abdomen with a rubber bullet. Henderson sustained injuries, for which he received 

medical treatment. He continues to require medical treatment, medication, and 

physical therapy. 

The trial court’s summary judgment recites that Ranger Guard and Roberson 

were independent contractors of [Parque View] and, as such, [Parque 

View] owed no duty to the Plaintiff with regard to any negligence of 

Ranger Guard or Roberson. Because [Parque View] had no duty as to 

the Plaintiff relating to the activities of its independent contractors, they 

are entitled to judgment as a matter of law. 

DISCUSSION

I. Standard of Review and Applicable Law

We review summary judgments de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). For a traditional motion for summary judgment like 

this one, the movant bears the burden to show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 

848 (Tex. 2009). The defendant moving for traditional summary judgment must 

conclusively negate at least one essential element of each of the plaintiff’s causes of 

action or conclusively establish each element of an affirmative defense. Sci. 
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Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We review the 

summary-judgment evidence in a light favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if reasonable jurors could, and disregarding 

contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. 

Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see also Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (first citing Provident Life & Accid. Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); and then citing Martinez, 941 

S.W.2d at 911).

Both of the issues on appeal concern whether Parque View owed a legal duty 

to its residents. The existence of a duty is a question of law for the court to decide 

from the particular facts of the case. Golden Spread Council, Inc. No. 562 of Boy 

Scouts of Am. v. Akins, 926 S.W.3d 287, 289 (Tex. 1996) (citing Greater Houston 

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). In deciding whether to 

impose a duty, we weigh several interrelated factors, including the risk, 

foreseeability, and likelihood of injury; the social utility of the actor’s conduct; the 

magnitude of the burden of guarding against the injury; the consequences of placing 

the burden on the defendant; and whether one party had superior knowledge of the 

risk or a right to control the actor who caused the harm. Id. at 289–90 (citing Graff 

v. Beard, 858 S.W.2d 918, 920 (Tex. 1993)).
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II. Duty of Care in Retaining an Independent Contractor

Henderson acknowledges that Texas law does not impose liability on an 

employer for an independent contractor’s tortious conduct unless the employer 

retains some control over the manner in which the contractor performs the work or 

the work itself involves a nondelegable duty, whether inherently dangerous or 

statutorily prescribed. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 795 (Tex. 2006). 

Henderson does not allege that Parque View retained any control over any of the 

details of Ranger Guard’s work, and the contractual language does not allow any 

control without Ranger Guard’s written approval. Accordingly, this rule precludes 

Parque View from being held vicariously liable for the conduct of Ranger Guard or 

its employees as a matter of law. Henderson further claims, however, that Parque 

View should be held directly liable for its own negligence in retaining the services 

of an allegedly incompetent security contractor. 

As the basis for imposing a direct duty on Parque View for Roberson’s 

conduct, Henderson points to the Texas Supreme Court’s decision in Fifth Club, Inc. 

v. Ramirez, 196 S.W.3d 788 (Tex. 2006). In Fifth Club, a patron sued a nightclub 

for injuries that he sustained as a result of an altercation with an off-duty peace 

officer whom the club had hired as an independent contractor to provide security

services. Id. at 790. The plaintiff asked the Court to recognize a personal character 

exception, recognized in some other jurisdictions, to hold employers or premises 
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owners directly liable for the acts of their independent contractors in the security 

context. Id. at 792–94. 

The Court declined to recognize a personal character exception. Id. at 796. It 

noted that the Texas Legislature has not recognized a nondelegable duty recognized

by the jurisdictions adopting such an exception, those being (1) a state-imposed 

nondelegable or personal duty to keep business premises safe, and (2) an articulated

public policy that business owners should not benefit from an independent 

contractor’s surveillance or protection of their property without also incurring 

liability for that contractor’s unlawful conduct. Id. at 794–95.

Although it rejected recognition of an exception to the general rule that an 

owner or general contractor is not liable for the actions of an independent contractor 

over whom it exercises no control, the Court acknowledged that a “plaintiff could, 

and did, sue the nightclub alleging direct liability for negligent hiring.” Id. at 796. 

Henderson relies on this acknowledgment as the basis for his negligent retention

claim against Parque View. 

Fifth Club’s consideration of the plaintiff’s negligent hiring claim, however,

does not support the theory that Henderson advances. In Fifth Club, the nightclub 

hired the individual officer as an independent contractor without performing a 

background check, requiring a job application, or interviewing him directly. Id. The 

Court, observing that the officer’s status as a certified peace officer qualified him 
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for the security work, concluded that the plaintiff’s evidence was legally insufficient 

to support a finding that the club was negligent in hiring or retaining the officer. Id.

at 797. Contrary to Henderson’s suggestion, the Fifth Club Court did not impute 

any nondelegable duty of care to an employer to ensure that an independent 

contractor properly performs the details of the work for which it was contracted. See 

id. at 796; see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) 

(explaining that when negligence arises out of activity being performed under 

contract, duty to see that work performed in safe manner belongs to independent 

contractor and not party who hired independent contractor) (citing Abalos v. Oil Dev. 

Co. of Tex., 544 S.W.2d 627, 631 (Tex. 1976)); Motloch v. Albuquerque Tortilla 

Co., 454 S.W.3d 30, 33 (Tex. App.—Eastland 2014, no pet.) (same) (citing 

Redinger, 689 S.W.2d at 418). 

Henderson’s reliance on Davis-Lynch, Inc. v. Asgard Techs., LLC, 472 

S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2015, no pet.), is similarly misplaced.

That case dealt with a staffing company that had contracted with an oilfield 

manufacturer. Id. at 57. The staffing company placed an administrative employee

with the manufacturer as a receptionist. Id. Eventually, the manufacturer promoted 

her to head of accounting. Id. She was discovered to have embezzled over $15 

million. Id. at 58. The manufacturer sued the staffing company for negligent hiring 

based on its failure to perform a criminal background check on the employee, who 
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had two prior misdemeanor theft charges, one that resulted in a conviction and the 

other a deferred adjudication. Id.

Our sister court held that the staffing company could not have foreseen that 

its placement of the employee as a receptionist for the manufacturer would create a 

risk of harm to others because of her employment duties. Id. at 67. The court also 

observed that after the manufacturer transferred the employee to another position in 

the accounting department, the parties’ contract no longer required the staffing 

company to supervise her. Id. at 66. After the transfer, the manufacturer gained the 

exclusive right to control the employee’s work and thus, the staffing company could 

not be sued by the manufacturer under a respondeat superior theory. Id. at 71. 

The shift in control from the staffing company to the manufacturer makes 

Davis-Lynch inapposite to this case. Here, no such shift occurred: At all times, 

Roberson remained an employee of Ranger Guard and at no time did Parque View 

assume control over any of the details of Roberson’s work. 

Although Henderson points to incident reports relating interactions with other 

tenants, none of them involved violence or violation of the law. None of the 

evidence presented in the summary judgment records demonstrates that Parque View

was aware that Roberson presented an unreasonable risk of harm to the public. See 

Fifth Club, 196 S.W.3d at 796–97. The security guard in Fifth Club, Officer West, 

had been reprimanded for using profanity, but the Texas Supreme Court concluded 
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that nothing in hiring West demonstrated to the property owner that West presented 

a risk of harm to the public: 

As to negligence in hiring, the evidence indicates that even if Fifth Club 

had investigated West before hiring him, nothing would have been 

found that would cause a reasonable employer to not hire West . . . The 

evidence showed that West violated a requirement in the applicable 

peace officer manual by accepting employment at the club, and that his 

primary employer had reprimanded West for the use of a profanity to a 

member of the public. This evidence is not sufficient to have put Fifth 

Club on notice that hiring West would create a risk of harm to the 

public, even if Fifth Club had done a background check. 

Id. (internal citation omitted). For the same reason, the court concluded that the 

owner was not liable for negligently retaining its independent contractor:

[N]o evidence was presented that West was an incompetent or unfit 

security guard such that Fifth Club was negligent in retaining him after 

he was hired. Fifth Club hired West as a security guard to assist in 

protecting its property and patrons, a job specially suited to a trained 

peace officer . . . there was no conflicting evidence that he was unfit for 

the security position prior to the incident in question.

Id. at 797 (internal citation omitted). Henderson presents evidence—coarse 

language and rudeness—rejected as evidence supporting a negligent retention claim 

for the independent contractor in Fifth Club. Id. Ranger Guard warranted 

Roberson’s qualifications for providing security services under the contract, 

including that Roberson was a certified security guard. Ranger Guard supervised 

Roberson’s work at the apartment complex. Parque View was entitled to rely on 

Ranger Guard’s warranty and supervision. Redinger, 689 S.W.2d at 418 (rejecting 

duty to see independent contractor’s work performed in safe manner). Accordingly, 
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we hold that the trial court properly granted Parque View’s motion for summary 

judgment on Henderson’s claim for negligent hiring and retention of the 

independent-contractor security guard.

III. No Duty to Notify Residents of Security Presence at Parque View

Henderson next contends that Parque View is liable for negligently failing to 

warn him of the presence of armed security guards at the complex. 

A landowner who exercises control over the premises must use reasonable 

care to make the premises safe for the use of business invitees. Lefmark Mgmt. Co. 

v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Stemming from this duty as well is the

concomitant duty to warn invitees of hidden dangers presenting an unreasonable risk 

of harm. Henderson invites us to recognize that an apartment owner owes a duty to

adequately warn its tenants of the presence of armed security on the premises. See 

id. In advocating for this duty of notice, Henderson points to evidence indicating 

that some tenants were not aware that armed security personnel were patrolling the 

premises. 

In Ross v. Texas One Partnership, the Dallas Court of Appeals refused to 

recognize such a duty, concluding that premises owners should be able to hire 

independent contractors to provide armed security services for protecting their 

property without risking exposure to automatic liability for the negligent discharge 

of firearms by the independent contractor’s employees. 796 S.W.2d 206, 215 (Tex. 
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App.—Dallas 1990, writ denied). In Ross, the plaintiff sued the owner of an 

apartment complex after he was shot by a security guard who was patrolling the 

complex. Id. at 209. As an exception to the general rule that a party cannot be held 

liable for harm caused by its independent contractor, the plaintiff posited that the 

hiring party be held liable for injuries caused by its independent contractor’s failure 

to exercise the nondelegable duty of care in performing work that is inherently 

dangerous. Id. at 214–15. The Ross court, however, concluded that the work 

undertaken by the security company in that case was not inherently dangerous work.

Id. at 215.

Texas precedent weighs against adopting an affirmative duty of notice in this 

case. Texas recognizes that premises owners or controllers owe a duty to use 

ordinary care to protect invitees from criminal acts of third parties if the owner

knows or has reason to know of an unreasonable and foreseeable risk of harm to the 

invitee. See Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 

1998); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 550 (Tex. 1985). In this case, 

Parque View was aware of an upsurge in criminal activity in the area, and it retained 

security services in order to protect the property and its tenants. The policy choice 

implicit in the rule recognized in Timberwalk and subsequent cases permits premises 

owners to undertake reasonable measures, such as contracting with a security 

service, to preserve a premise’s safety from criminal activity without at the same 
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time being accused of creating a hidden danger. Henderson did not adduce evidence 

that the possession of the gun with rubber bullets was unlawful or unlicensed or that 

Parque View had any knowledge of any unlawful or unlicensed activity that caused 

the incident in question. Because Henderson has not demonstrated that Parque View 

knew or should have known that Roberson’s activities on its premises were 

inherently dangerous, we hold that the trial court correctly concluded that Parque 

View was entitled to judgment as a matter of law on Henderson’s failure-to-notify 

claim. See Fifth Club, 196 S.W.3d at 795; Ross, 796 S.W.2d at 215.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Keyes, Bland, and Huddle.