Raymond Farley and Karen Farley, Ind., and as Administrators of the Estate of Raymond Farley, Jr. v. David Watkins and Sharon Watkins

Opinion issued June 2, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00800-CV RAYMOND FARLEY AND KAREN FARLEY, INDIVIDUALLY AND AS ADMINISTRATORS OF THE ESTATE OF RAYMOND FARLEY JR., Appellants V. DAVID WATKINS AND SHARON WATKINS, Appellees On Appeal from the 280th District Court Harris County, Texas Trial Court Cause No. 2003-62785 MEMORANDUM OPINION Raymond and Karen Farley, individually and as administrators of the estate of their deceased son, Raymond Farley Jr., (collectively, “appellants”) appeal the trial court’s rendition of summary judgment against them on their claims for wrongful death and survivorship. In their sole issue, appellants argue that the trial court improperly ruled that appellees, David and Sharon Watkins, “had no duty to render aid” to then 16-year-old Raymond Farley Jr. We affirm. BACKGROUND On May 17, 2003, Raymond Farley Jr. (“Raymond”) was an overnight guest in the home of his parent’s friends, David and Sharon Watkins. The Watkinses’ eight-year-old daughter Shanda, and Sharon Watkins’s 19-year-old son Matthew, were also at the home that night. After everyone had gone to bed, an unidentified arsonist set fire to the Watkinses’ home. The Watkinses and Matthew escaped the fire, but Raymond and Shanda were killed. Deposition testimony from David and Sharon Watkins was part of the summary judgment evidence. Sharon Watkins testified that, on the night of May 17, 2003, the fire and security alarms went off in her house and woke her up. She stated that she left her upstairs bedroom and went down to the foot of the stairs and discovered that her house was on fire. She testified that she ran back upstairs to the bedrooms and woke up her husband, who told her to get Raymond and Shanda before he ran downstairs to get Matthew. At this point, according to Mrs. Watkins’s testimony, she picked up Shanda, who had already come out of her room, and went to get Raymond. Mrs. Watkins stated that she had some difficulty waking Raymond up and difficulty getting him to understand that the house was on fire. She stated that, after she got Raymond up and aware of the danger, she heard an explosion and discovered that they were unable to go down the stairs because of the flames. Mrs. Watkins testified that she took Shanda and Raymond back into the bedroom where Raymond had been sleeping. The bedroom had a window leading to the roof. Mrs. Watkins described her efforts to get the window open, including an unsuccessful attempt to break it with a television set. She stated that, once she managed to open the window, the small bedroom was so filled with smoke that she could no longer see Raymond or Shanda. Mrs. Watkins said she stuck her head out of the window to get air, and couldn’t find the children when she turned back to lead them out the window. According to her testimony, she was overtaken by smoke and collapsed with her torso out the window. She stated that she eventually pulled herself fully onto the roof, lay there an undetermined period of time, and then rolled off the roof when her leg started to burn and that she fell into the back yard. Appellants filed suit against the Watkinses for wrongful death and survivorship, alleging negligence based on premises liability. After the Watkinses filed their first motion for summary judgment under rule 166a(c), appellants added allegations of “negligent conduct” and breach of fiduciary duty. The Watkinses then filed a second summary judgment motion under rule 166a(c). The trial court granted both of the Watkinses’ motions for summary judgment. DISCUSSION The only issue appellants present on appeal is their contention that the trial court improperly ruled that the Watkinses had no duty to render aid to Raymond. “In determining whether a cause of action in negligence exists, the threshold inquiry is whether the defendants owed the plaintiffs a legal duty.” Smith v. Merritt, 940 S.W.2d 602, 604 (Tex. 1997). The court decides whether a duty exists from the facts surrounding the occurrence in question and, if no duty exists, then summary judgment is proper because there cannot be negligence liability. See Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). Appellants argue that the Watkinses either assumed a duty of care, or that a duty of care arose because the Watkinses had a “special relationship” with appellants. Alternatively, appellants argue that “the law may impose a duty in such circumstances.” Appellants present no legal authority to support their contention that the Watkinses assumed a duty to render aid or that there was a special relationship between the Watkinses and appellants that gave rise to a duty to render aid. Regarding their contention that the law should impose a “common law duty,” appellants cite a single case, Ryan v. Friesenhahn, 911 S.W.2d 113 (Tex. App.—San Antonio 1995), judgment aff’d, 960 S.W.2d 656 (Tex. 1998). Not only is Ryan factually inapposite, but the Supreme Court, while affirming the San Antonio court’s judgment on other grounds, expressly rejected, as unnecessary and procedurally improper, the holding upon which appellants rely. When the plaintiff is a social guest, as is the case here, the host is generally under no common law duty to protect the plaintiff from the criminal acts of a third party or to come to the plaintiff’s aid. Perry v. S.N., 973 S.W.2d 301, 306 (Tex. 1998). Furthermore, we find no authority to support appellants’ contention that the law “will” impose a common law duty, and decline to follow appellants’ suggestion that we “may” impose a new common law duty under the facts of this case. See id. We overrule appellants’ sole issue.CONCLUSION We affirm the trial court’s judgment. Sam Nuchia Justice Panel consists of Justices Nuchia, Keyes, and Bland.