Rita Elaine Cunningham, Individually and as Next Friend of Airricka Cunningham and Candace Cunningham, Minors v. Wilbur Bohne and Sue Bohne

Rita Elaine Cunningham, Ind. & as Next Friend of Arricka & Candace Cunningham, Minors IN THE TENTH COURT OF APPEALS No. 10-98-215-CV RITA ELAINE CUNNINGHAM, INDIVIDUALLY AND AS NEXT FRIEND OF AIRRICKA CUNNINGHAM AND CANDACE CUNNINGHAM, MINORS, Appellant v. WILBUR BOHNE AND SUE BOHNE, Appellees From the 74th District Court McLennan County, Texas Trial Court # 96-1114-3 O P I N I O N This is an appeal from an order granting summary judgment that Appellant Cunningham take nothing against Appellees Wilbur and Sue Bohne. Shannon Bohne, age 13, is the granddaughter of Appellees Wilbur and Sue Bohne; she is the daughter of Keith Bohne. Keith Bohne lives a short distance down the road from Appellees Wilbur and Sue Bohne, and in a house that belongs to his father, Wilbur Bohne. On October 14, 1995, Keith Bohne gave his daughter, Shannon, a thirteenth-birthday slumber party at his house. Airricka Cunningham, Appellant’s daughter and Shannon’s classmate, and two other girls were invited to attend the slumber party at Keith’s house. Before the slumber party was to begin, Shannon’s grandparents, Wilbur and Sue Bohne, gave a birthday dinner for Shannon at their house. On the afternoon of the slumber party Shannon, Airricka, and the other girls at the slumber party walked the short distance to Appellees’ house for dinner. After the dinner was over, Keith and all of the girls returned to Keith’s house. Upon returning to Keith’s house, Airricka Cunningham and the other girls took turns riding the motorized four-wheelers which were owned by Keith and which were kept at his house. Airricka Cunningham and another girl decided to ride away from Keith’s house and go down the county road. Airricka lost control of her vehicle, ran off the road and collided with a fence which ran along Appellees’ Wilbur and Sue Bohne’s property. Airricka was injured and her mother, as her next friend, brought suit against Keith Bohne, Wilbur and Sue Bohne, and later amended to include the Yamaha Motor Company, the manufacturer of the vehicle. Appellant asserted three causes of action against Wilbur and Sue Bohne: (1) negligence; (2) gross negligence and (3) negligent entrustment. Appellees Wilbur and Sue Bohne filed a motion for summary judgment that Appellant take nothing as to them. The trial court granted such motion and severed them from the balance of the case. Appellant filed a motion for new trial and an amended motion for new trial, asserting the court erred in granting the summary judgment. The court denied the motions. Appellant appeals on two points of error: (1) the trial court erred in granting Appellees’ motion for summary judgment and (2) the trial court erred in denying Appellant’s First Amended Motion for New Trial. Specifically, Appellant contends that Appellees (1) failed to produce evidence that they lacked control over the land upon which the terrain vehicles were stored and operated; (2) Appellees had a duty to warn Appellant about the illegal, dangerous and unsupervised activity occurring on their land; and (3) Appellees negligently entrusted an all-terrain vehicle to a thirteen-year-old child. As noted, Appellant asserted Wilbur and Sue Bohne were negligent, grossly negligently and guilty of negligent entrustment. In order to establish negligence, a plaintiff must produce evidence to establish a duty, a breach of that duty, and damages proximately caused by the breach. Werner v. Calwell, 909 S.W.2d 866, 869 (Tex. 1995). No legal liability can arise from any alleged negligence where no duty exists. Whether duty exists is a question of law for the court to decide under the facts surrounding the occurrence. Greater Houston Trnsp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Lefmark Mgmt Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1996). An occupier of premises has no greater duty than does the public generally regarding conditions outside of his premises and not caused by the occupier. Abalos v. Oil Development Co., 544 S.W.2d 627, 633 (Tex. 1976); Howe v. Kroger Company, 598 S.W.2d 29 (Tex. App.—Dallas 1980, no writ). Appellees were entitled to summary judgment if they negated at least one element of Appellant’s cause of action. Johnson Co. Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). Appellees’ land-owner liability is premised on control. Appellees’ control ended when the dinner was over and Airricka and the others returned to Keith’s house. Appellant, however, asserts that since Appellees owned the property where Keith lived, and where the vehicles were kept, that Appellees had control over the vehicle; and that Appellees have not shown by summary judgment evidence what the terms of Keith’s occupancy were. We hold that whatever the terms of Keith’s occupancy were, it is undisputed that he was living in the house; that the vehicles were kept at his house; that the vehicles belonged to him; and that Appellees had no duty to Appellant under the facts of this case. Appellant further asserts Appellees negligently entrusted the four-wheelers to Appellant. The threshold requirement of a negligent entrustment cause of action is entrustment of a vehicle by an owner. Williams v. Stevens Industries, 699 S.W.2d 570 (Tex. 1995). The vehicle driven by Appellant’s daughter was owned by Keith Bohne. He is the one who permitted Airricka to operate it. The vehicle was not registered to Appellees; they did not buy, possess, care for, manage or own it. They did not exercise control over it and did not have custody of it. The vehicle was kept at Keith’s house. In summary, the uncontroverted evidence establishes as a matter of law that Appellees Wilbur and Sue Bohne owed no duty to Appellant and thus were not negligent or grossly negligent. Further, Appellees were neither the owners or custodians of the four-wheeler driven by Appellant’s daughter, Airricka Cunningham. Mere ownership of the property where Keith Bohn’s house was located and where he lived and garaged the four-wheelers, and where his daughter’s birthday slumber party was taking place, is not enough to establish a duty owed by Appellees to Appellant. Both of Appellant’s points are overruled. The judgment is affirmed. FRANK G. McDONALD Chief Justice (Retired) Before Justice Vance, Justice Gray and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed March 17, 1999 Do not publish