Full opinion text
OPINION JOE SPURLOCK, II, Justice. This is a personal injury case arising out of injuries received by Michael Van Page, appellee, during a fire in a building belonging to Frances Melton, appellant. Page alleged that the fire was caused by the dangerous and unsafe condition of the building which was created and maintained by the negligence of both Melton and the Fire Department of the City of Denton, appellant. Page’s wife, Ida Louise (Lou) Page, appellee, joined in the suit and sought damages for mental anguish, loss of consortium and loss of household services. Based on a jury’s answer to special issues, the trial court entered judgment for the Pages, appellees. From such judgment, Melton and the City of Denton bring the present appeal. We reform and affirm. Frances Melton has submitted a pro se brief which sets out eight points of error and cites only two authorities in support of her contentions. Although her failure to cite authorities is in direct conflict with the requirements of TEX.R.CIY.P. 418(e), we believe that Melton’s points of error should nevertheless be addressed in this instance. TEX.R.CIV.P. 1. Melton’s point of error one contends that it was error for the trial court to deny her motion for a directed verdict and motion for judgment non ob-stante veredicto. Points of error two, three, four, and six complain of the trial court’s charge to the jury. Point of error five complains of the trial court’s exclusion of certain expert testimony. Points of error seven and eight appear to challenge the sufficiency of the evidence to support the jury’s apportionment of negligence between the parties. The City of Denton bases its appeal on thirteen points of error. Point of error one asserts that the Texas Tort Claims Act does not provide for waiver of immunity under the circumstances of the present case. Point of error two contends that the City of Denton owed no legal duty to appel-lees. Points of error three through ten contend that there was either no evidence or insufficient evidence to support the jury’s findings in answer to Special Issues One, Three, Five, Six and Seven. Points of error eleven, twelve and thirteen complain of the award by the trial court to Ida Louise Page. Because of the complexity of the arguments made concerning the relationship and duties of the parties, and the result this court reaches today, it is necessary to set out the facts of the case in detail. In April of 1981, Michael Van Page saw a rental listing for a house located in Den-ton, Denton County, Texas which was situated facing west onto Kendolf Street. To the north of the rent house was a narrow vacant lot, bordered on the north by Lindsey Street and on the west by Kendolf. To the south of the rent house was a large vacant lot, described as a field. About one hundred yards across this field and south of the rent house was a house under construction. Behind the rent house and a bit further north towards Lindsey was a barn or chicken coop. Just behind this barn was the driveway to another house which belonged to the McCarter family. All of the land between the driveway and Kendolf and from Lindsey to the house under construction belonged to Frances Melton including the house under construction and its property. The rent house was vacant when Michael Page first saw it. It was a small house with a wood exterior. The yard around the house was overgrown and the house itself was in need of painting. The lot which the house sat on was surrounded on three sides by tall shrubs. A note on the door indicated that inquiries about the rent house could be made of R.B. Melton who was at the house under construction on Kendolf. Page went to the house under construction and met R.B. Melton, who indicated to Michael Page that he was acting on behalf of his mother, Frances Melton, in showing the house and attempting to rent it. R.B. Melton showed Page around the property and pointed out the property lines. He explained to Page that the shrubs around the house marked the property line of the rent house. He told Page that the rent would be three hundred fifty dollars a month. R.B. Melton explained that the barn or chicken coop was used for storage and was not part of the rental property and would not be included in any rental agreement. There was also an area of the house directly behind the garage which was used for storage and would not be included in the rental agreement. Later that same day, Michael Page, his wife and two children, visited with Frances Melton to discuss the rental of the house. Frances Melton told the Pages basically the same things that R.B. Melton had told Michael Page. About a week after they visited with Frances Melton, the Pages moved into the house. The next few weeks were spent cleaning up the property surrounding the house. One morning after the yard had been cleaned up, Michael Page found a handwritten note on the front of the house which said, “You finally mowed the yard. When the hell are you going to paint the house?” Michael Page brought this note to the attention of R.B. Melton and they discussed the possibility of painting the house. Page told R.B. Melton that if the paint was furnished he, Page, would paint the house in exchange for rent. One evening after finding the note, the Pages found both of their cars spray painted with black paint. The Denton Police were contacted and an officer came out and took a report. The next day, Michael Page contacted R.B. Melton about the incident. Following this incident, Frances Melton only charged the Pages three hundred dollars for the May rent. A few days later, the Pages’ cars were spray painted again and black and brown paint was splattered on the front of the house. The incidents of vandalism continued and the Pages kept both Frances and R.B. Melton informed about the occurrences. The house was vandalized several times and signs saying “paint me” were painted on the walls. Some obscenities were painted on the front door which had been removed from its hinges in order to refinish the floor of the house. The Denton Police were contacted three or four times about the vandalism and each time a report was taken by an officer. These acts of vandalism took place from May of 1981 through September of 1981. It is unclear exactly how many incidents actually occurred and how they were spaced out over this time. On the evening of September 30, 1981, the Pages were at home when they received a phone call from their neighbor living behind the barn, Bill McCarter. The call came around 9:00 p.m. and Bill McCar-ter informed Michael Page that the barn was on fire and that he, McCarter, had already called the fire department. The barn could be clearly seen from the McCar-ters’ house but, the shrubs surrounding the rental house obscured the view of the barn from the Pages’ house. The fire station is located very close to the Melton property and in a very short time the fire trucks arrived. The barn had two entrances. One entrance was at the west end of the barn and one at the east end. The west door was padlocked and was mainly used for access to the barn. The east door had been nailed closed and was never used. When Michael Page went outside to the barn he could see that the west door was open and smoke was coming out of the barn. When the firemen entered the barn they found an old antique couch on fire. The fire was extinguished and the couch was pulled outside. The smell of kerosene was present on the couch and it appeared the fire had been deliberately set. The fire department remained on the scene for approximately thirty minutes. The firemen checked the inside and outside of the barn and then left. Frances Melton was notified about the fire and during the day of October 1, she went to the barn. The padlock on the west door was gone. She returned home and got another lock, then went back to the barn and relocked the west door. Fire Marshall, Robert (Bob) Hágemann, was present during the September 30th fire. He examined the barn and the couch and filed a written report. He concluded that the fire was deliberately set. During the day of October 1, he returned to the barn to check the damage and search for evidence but none was found. On the evening of October 1, 1981, around 10:00 p.m., Michael Page was visiting with neighbors across the street when he saw Bill McCarter running down Lindsey Street towards his house. McCarter ran to Page and told him that the barn was on fire again and that the fire department had been called. Page and McCarter ran to the barn and the fire department arrived shortly thereafter. The couch, which had been pulled outside the previous evening, was up against the wall of the barn and on fire. Both the couch and the corner of the barn were burning when the fire department arrived. The fire was extinguished and the firemen checked the premises, including the inside of the barn for any remaining fire. In order to check inside, the firemen had to pry the west door off of its hinges. After about thirty minutes from the time they had arrived, the firemen left. McCarter returned to his home and Page went back to his house. Later that same evening Michael and Lou Page were sitting on their front porch when they received a phone call sometime between 10:30 p.m. and 11:00 p.m. and it was Bill McCarter saying that the barn was again on fire, and he had again called the fire department. The firemen arrived and found a fire inside the barn, much more substantial than the previous two. The firemen extinguished this fire and began checking the inside of the barn. Fire Marshall, Bob Hagemann, arrived at some point during the evening and inspected both the inside and outside of the barn. Hagemann questioned some of the neighbors that had gathered and indicated that he would be watching the barn after this. Frances Melton was notified of the two October 1st fires and on October 2, she came out to inspect the damage. Michael Page walked with Melton out to the barn and went through the barn with her. Melton pointed out items in the barn which she was disappointed at losing; an old box fan and a riding saddle as well as the antique couch were of particular importance to her. Melton left and Page went back to the house. At this point, the west door was still open. On October 5, 1981, Frances Melton returned with a man she had hired to tow away an old convertible automobile which was parked along the south side of the barn. Michael Page went out to the barn and helped in moving the car. At some point between October 2 and October 15, Michael Page boarded up the west door of the barn. On October 15, 1981, the Page family was at home. Lou Page was with the children in the front part of the house around 6:00 p.m. when she heard someone yelling. The screams came from the backyard in the direction of the barn. Lou Page was standing in the living room when Michael Page entered through the backdoor and came into the room. Michael was badly burned on his face, arms, hands and legs. Lou Page immediately called an ambulance. The barn was in flames. Fire Marshall Bob Hagemann arrived at the barn around 6:20 p.m. on October 15. The fire had already been extinguished by this time. He found some empty five gallon cans scattered throughout the inside of the barn. He further found some unopened five gallon cans, containing gasoline, inside the barn and some cans standing outside of the barn. A matchbook was found laying just inside the west door of the barn. The smell of gasoline could clearly be detected in and around the barn. Appellees’ second amended petition states a cause of action against both Frances Melton and the City of Denton for the personal injuries received by Michael Page and for the mental anguish, loss of consortium and loss of household services suffered by Lou Page. Their second amended petition enumerated six specific acts of negligence attributable to the City of Den-ton and five specific acts of negligence attributable to Frances Melton which were alleged to be the proximate cause of the injuries and damages suffered by appel-lees. The appellees alleged that the City of Denton was negligent in: failing to have the cans of gasoline removed from the barn; failing to enforce the laws of the City of Denton and the State of Texas; failing to warn appellees of the dangerous condition of the barn; failing to insure that the barn was adequately secured against intrusion; failing to inspect the barn so as to determine the presence of gasoline; and failing to have adequate procedures established for the purpose of prevention of future fires. They alleged that Frances Melton was negligent in: violating the ordinances of the City of Denton; violating the laws of the State of Texas; failing to warn the appellees of the dangerous condition of the barn; failing to adequately secure the barn against intrusion; and failing to inspect the barn so as to determine the presence of gasoline. The appellees’ second amended petition further pled that “the liability sought to be established against the City of Denton, Texas arises from the condition or use of the storage house in question and that the Defendant Denton’s liability is therefore founded upon Article 6252-19, Sec. 3.” At trial, the appellees abandoned all pleadings which alleged that Frances Melton and the City of Denton were respectively negligent in violating and failing to enforce the ordinances and laws of the City of Denton and the State of Texas. The evidence and testimony admitted at trial wholly failed to establish or prove any violation of or failure to enforce such ordinances and laws. The appellees, in this respect, failed to establish the existence of any negligence per se on the part of appellants and any recovery must be based on common law theories of negligence. Following abandonment of the pleadings above, appellees proceeded on the alleged negligence of both appellants in: failing to warn of the dangerous conditions of the barn; failing to adequately secure the barn against intrusion; and failure to inspect the barn so as to determine the existence of gasoline. Appellees further proceeded against the City of Denton on its alleged negligence in: failing to have the cans of gasoline removed from the barn; and failing to have adequate procedures established for the purpose of prevention of further fires. Appellant, the City of Denton, concedes that the establishment of a fire department and the furnishing of fire protection is in fact a governmental function. Further, the City of Denton properly asserts that any liability as to it must be predicated upon the terms and provision of the Texas Tort Claims Act, TEX.REV.CIV.STAT.ANN. art. 6252-19 (Vernon 1970), as amended by ch. 50, sec. 1, 1973 Tex.Gen.Laws 77. Appellees pled that the liability of the City of Denton was based upon the “condition or use” of the barn. We find that appellees have failed to either adequately plead or offer sufficient proof of the City of Denton’s liability based upon a “use of tangible property”. Appellees’ petition alleged that the City of Denton was negligent in: failing to have the cans of gasoline removed from the barn; failing to warn the appellees of the dangerous condition of the barn; failing to insure that the barn was adequately secured against intrusion; and failing to inspect the barn so as to determine the presence of gasoline. All of these allegations support a theory of negligence based on the maintenance of a dangerous condition of tangible real property. We find that appellees’ petition adequately pled a waiver of immunity under the Texas Tort Claims Act based on a “condition” of tangible real property. Appellees’ petition also alleged that the City of Denton was “negligent in failing to have adequate procedures established for the purpose of prevention of future fires in connection with the fire investigation.” We find that such pleadings fail to establish the existence of a waiver of immunity under the Texas Tort Claims Act. Section 14(9) of the Act clearly states that “[t]he provision of this Act shall not apply to: ... [a]ny claim based on an injury or death connected with any act or ommission ... arising out of the failure to provide, or the method of providing, police or fire protection.” TEX.REV.CIV.STAT.ANN. art. 6252-19, sec. 14(9) (Vernon 1970). We find that the matter of whether or not to establish procedures for the purpose of prevention of fires is purely a policy decision. As stated by the Supreme Court of Texas in State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979), “if the negligence causing an injury lies in the formulating of policy ... the government remains immune from liability.” As such pleadings failed to establish a valid cause of action against the appellant, City of Denton, they will not be considered in the determination to be made in the present appeal. We now turn to address the appellants’ points of error. As mentioned above, appellant, Frances Melton, has submitted a pro se brief in the present appeal. Her points of error will be addressed contemporaneously with those of appellant, the City of Denton, in as far as they deal with the same general subject matter. For purposes of brevity, appellants will hereinafter be referred to by their names as Melton or Denton. In its first point of error, Denton contends that the court erred in rendering judgment against it in that the Texas Tort Claims Act does not permit recovery against a municipality for premises liability where the municipality was neither the owner, occupier nor user of the property. Denton urges that the Texas Tort Claims Act (hereinafter referred to as the Act) does not provide for recovery except where the governmental unit either: 1) negligently furnishes or uses some item of tangible property; or 2) is the owner, occupier or furnisher of some defective property. In furtherance of this point, Denton asserts that appellees neither pled nor proved any negligent furnishing or use of tangible property. Denton asserts that in order for the appellees to recover under a cause of action based on a defective condition of property that the language of the Act requires appellees to plead and prove that Denton owned, occupied or furnished the allegedly defective property. It is further asserted that even if Denton had been found to be an occupier or owner of the premises, then because this is a premises defect case Denton only owed appellees the duty owed by private persons to a licensee on private property. We do not agree with either Denton’s contentions or their construction of the Texas Tort Claims Act. This is not a “premises defect” case. Appellees neither pled nor attempted to prove that Michael Page’s injuries were caused by a defect in the premises. Appel-lees pled and attempted to prove that their damages were caused by a dangerous and unsafe “condition” of real property which was created and maintained by the negligence of appellants. Section 3 of the Act, establishes the statutory waiver of immunity for political subdivisions. This section provides a waiver of governmental immunity in three general areas: use of publicly owned vehicles, premise defects, and injuries arising from conditions or use of property. Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 31 (Tex.1983). It is clear that a cause of action based on a “premise defect” is unquestionably distinguishable from a cause of action based on a “condition” of property. The Supreme Court of Texas in Lowe v. Texas Tech University, 540 S.W.2d 297, 299 (Tex.1976), paraphrased the pertinent portion of sec. 3 of the Act as follows: Each unit of government in the state shall be liable for money damages for death or personal injuries so caused (i.e., when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office) from some condition or some use of tangible property under circumstances where there would be private liability. The Supreme Court of Texas in construing the Act has further held that if a government officer or employee acts negligently in carrying out a government policy, then liability may exist under the Act. State v. Terrell, 588 S.W.2d at 788. Appellant, Denton, cannot seriously challenge the propriety of a cause of action based on injuries suffered due to the existence of a dangerous or unsafe condition of property. The court in City of Baytown v. Townsend, 548 S.W.2d 935 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.), upheld an award to plaintiff for injuries suffered due to a dangerous and unsafe condition of property which condition was due to the City’s negligence. Further, the property complained of was located on land owned by a school district and not the City of Baytown, 548 S.W.2d at 938. In City of Austin v. Cooksey, 561 S.W.2d 874 (Tex.Civ.App.—Eastland), affd in part, reversed and remanded for entry of corrected judgment, 570 S.W.2d 386 (Tex.1978), the court upheld a judgment against both the City and the State for the wrongful death of plaintiffs husband. Plaintiffs cause of action was based on “special defects” and “some condition or some use of tangible property, real or personal” theories of recovery. City of Austin v. Cooksey, 561 S.W.2d at 877. The Supreme Court of Texas agreed with the Court of Civil Appeals that there was “evidence to support the judgment of liability against the City and State.” City of Austin v. Cooksey, 570 S.W.2d at 387. In Salcedo, the Supreme court of Texas held that “[t]he words ‘some condition’ require an allegation of defective or inadequate property when ‘some condition’ of property is a contributing factor to the injury.” Salcedo, 659 S.W.2d at 32. The Court in Salcedo, however, was determining the proper construction of the Act when “some condition or some use” of tangible “personal” property was a contributing factor to the injury. Under such circumstances, it would surely be necessary to allege the defective or inadequate nature of the personal property which led to its unsafe condition. This is not, however, the ease we have before us. The “condition” of property being complained of in the present case is a condition of real property not personal. We find that the present case is therefore, distinguishable from Sal-cedo. We find that appellees adequately pled a good cause of action by alleging that an unsafe and dangerous “condition” of real property was a contributing factor to Michael Page’s injuries. The City of Denton would have us construe the Act in such a way that the property, the “condition” of which has contributed to the plaintiff’s injuries, must be owned, occupied, furnished or in some manner controlled by the government unit. We cannot agree with such an interpretation of the Act. The Act clearly states that liability will exist where personal injuries have been caused by “some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.” TEX.REV.CIV. STAT.ANN. art. 6252-19, sec. 3 (Vernon 1970), as amended by ch. 50, sec. 1, 1973 Tex.Gen.Laws 77. The Act does not require as a prerequisite to finding liability that the government unit own, occupy, or in any way control the property. To require such, would violate the legislative mandate contained in the Act itself that the Act be liberally construed. TEX.REV.CIV.STAT.ANN. art. 6252-19, sec. 13 (Vernon 1970). As noted above, the Act provides specifically that the unit of government will be liable under circumstances where “a private person, would be liable to the claimant in accordance with the law of this state.” Appellees alleged that Denton was negligent in failing to'inspect the barn so as to determine its dangerous condition, failing to warn of such dangerous condition and failing to correct such dangerous condition. Appellees’ theory of liability has support in Gundolf v. Massman-Johnson, 473 S.W.2d 70 (Tex.Civ.App.—Beaumont), error ref'd n.r.e., 484 S.W.2d 555 (Tex.1972), where private persons (the defendants) were held liable for their negligence in failing to correct a dangerous condition, which caused the plaintiff’s injuries, once such defendants promised the plaintiff to undertake the correction of the dangerous condition and plaintiff relied on such promise. Further, in Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962), two defendants were held liable; one for actively creating a dangerous condition, which resulted in the plaintiffs injuries, and the other for failing to correct such dangerous condition. We hold, therefore, that if Denton’s negligence in failing to correct a dangerous condition resulted in the maintenance of such condition and where, the dangerous condition contributed to appellee’s injuries, statutory liability may exist if a “private person” would have been liable. We further hold that where a cause of action based on “some condition” of real property has been adequately pled, government liability may exist to the extent a “private person” would be liable even though such unit of government is neither the owner, occupier nor furnisher of the real property. We find that appellees have adequately pled such a cause of action based on a “condition” of real property, the barn. Since this is a “condition” of property case and not a “premise defect” case, we hold that the exclusion contained in TEX.REV. CIV.STAT.ANN. art. 6252-19, sec. 18(b) (Vernon 1970), is not applicable to the present case. We overrule Denton’s point of error one. Denton’s point of error nine contends that the court erred in rendering judgment against it because as a matter of law, Michael Page was not an invitee on the premises in question. Point of error ten contends that the jury’s finding that Michael Page was an invitee was against the great weight and preponderance of the evidence. These points of error attack the legal and factual sufficiency of the evidence to support the jury’s answer to Special Issue No. 1. Melton’s point of error one contends that the trial court erred in denying her motion for directed verdict and for judgment non obstante veredicto in that Michael Page could not have been an invitee. We will construe this point of error as also being a challenge to both the legal and factual sufficiency of the evidence. Special Issue No. 1 in the court’s charge to the jury stated: Find from a preponderance of the evidence whether on the occasion in question Michael Van Page was (1) a trespasser, or (2) a licensee or (3) an invitee on the “chicken coop” part of Frances Melton’s premises? “TRESPASSER” means a person who is on the property of another without any right, lawful authority, or express or implied invitation, permission or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge. “LICENSEE” means a person who is on the premises with the permission of the possessor but without an express or implied invitation. Such person is on the premises only because the possessor has allowed such person to enter and not because of any business or contractual relations with, or enticement, allurement, or inducement to enter by, the possessor. “INVITEE” means a person who is on the premises with the express or implied invitation of the owner when he had present business relations with the owner of the premises which would render his presence of mutual aid to both. In the absence of some relation inuring to the mutual benefit of both or to the benefit of the owner, he is not a [sic] invitee. A person who is an invitee cannot be a licensee or a trespasser at the same time. You are instructed that an implied invitation is one which is extended by reason of the owner of premises doing something or permitting something to be done which fairly indicates to the person entering that his entry is consistent with . the intentions and purposes of the owner. The jury answered that Michael Page was an “invitee” on the portion of Frances Melton’s property in question. The definitions given in the present case are substantially the same as those found in Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.), where the court stated: In determining whether a person is an invitee, the general test is whether the injured person at the time of the injury has present business relations with the owner of the premises which would render his presence of mutual aid to both. In determining whether a person is a licensee, the general test is whether his presence on the premises was for his own convenience, or on business with someone other than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied and the injured person must be regarded as a mere licensee. Appellant, Denton, contends that the phrase “present business relations” in the above definition is all important to the existence of an invitee. We do not agree with such a contention. The court in Atchison, Topeka and Santa Fe Railway Co. v. Smith, 563 S.W.2d 660, 666 (Tex.Civ.App. — Waco 1978, writ ref’d n.r.e.), stated that an invitee is “a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant [on] the business of the owner or occupant or for their mutual advantage.” Id. at 666. Citing: 65 C.J.S. Negligence, sec. 68(41) (1966). See Texas Power & Light Company v. Holder, 385 S.W.2d 873, 885 (Tex.Civ. App. — Tyler), writ refd n.r.e., 393 S.W.2d 821 (Tex.1965). Stated much more simply an invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). As stated by the court in Rowland, however, “[i]n the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied.... ” Rowland, 620 S.W.2d at 933. In the present case, Michael Page’s status as either a trespasser, licensee or invitee was vigorously contested by the parties. There was conflicting testimony given by both Michael Page and Melton on this issue. Because the evidence was in conflict, Michael Page’s status became a question of fact to be passed upon by the jury. United Super Markets v. Valesco, 416 S.W.2d 467, 470 (Tex.Civ.App. — Amarillo 1967, writ ref’d n.r.e.). If the evidence is sufficient to show that Michael Page entered Melton’s premises following her extension to him of either an express or implied invitation to do so and that such entry was either on the business of Melton or for the parties’ mutual benefit, then appellants’ points of error must be overruled. As stated previously, the appellants challenge both the legal and factual sufficiency of the evidence to support the jury’s finding that Michael Page was an invitee. In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidences and inferences to the contrary. See Stodghill v. Texas Employers Insurance Ass’n., 582 S.W.2d 102, 103 (Tex.1979); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King’s Estate, 244 S.W.2d at 661-62. Where the challenge to a jury finding is framed as an “insufficient evidence” point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If the court so determines, the finding should be set aside and a new trial ordered. Id. In considering an “insufficient evidence” point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ.App. — Amarillo 1977, writ ref’d n.r.e.). This court may not substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ.App. — Amarillo 1981, writ ref’d n.r.e.). The jury had before it conflicting testimony from the appellees and Melton. The testimony of both parties stated that no written lease contract existed between the parties and that their oral agreement specifically excluded the barn from the leased premises. The testimony of neither appellee revealed the existence of an “express” invitation by Melton to enter the barn on the evening of October 15, 1981. The definition of an invitee, however, allows that such entrance on the premise may be predicated on either an express or an implied invitation. The court's charge to the jury defined an “implied” invitation as “one which is extended by reason of the owner of premises doing something or permitting something to be done which fairly indicates to the person entering that his entry is consistent with the intentions and purposes of the owner.” It is well-settled, however, that “[a] person may be an invitee as to certain parts of the premises but not as to others.” Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 602 (1954). In order to sustain the jury finding that Michael Page was an invitee, the evidence must be sufficient to: (1) support the existence of an implied invitation extended by Melton to Michael Page, that he help in protecting her property; and (2) support a finding that such implied invitation extended to the inside of the barn. Further, such finding must not be against the great weight and preponderance of the evidence. At trial, Michael and Lou Page testified that they were given permission to use the lot to the north of the rent house for gardening purposes and the area to the east of the rent house and south of the barn for extra parking space. They also testified that the field to the south of the barn and the rent house could be used for recreation. The appellees’ testimony, in effect, revealed that Melton, through her own representations or those of her son, R.B. Melton, acting as her agent, had consented to the Pages’ use of almost all of the property surrounding the barn. Michael Page testified that on October 2, the day following the second and third fires, he walked through the barn with Melton. At that time, she indicated that certain of the damaged items inside the barn were a great loss to her. Michael Page testified that he offered to salvage and restore, for her, one particular item and Melton seemed pleased by this idea. Michael Page, by his testimony, offered to nail the west door securely shut but Melton responded that he should wait until a representative saw the barn. Eventually, Michael Page did nail the door shut and told Melton of his actions. Around October 5, Melton came to tow an old car away from the south side of the barn. Michael Page testified that Melton requested that he help in this endeavor, with which request he complied. Finally, Michael Page testified that through Melton’s actions and representations he believed that she wanted him to help in protecting and preserving her property. Even further, he believed that he had Melton’s permission to look after and protect the barn and to do anything that was necessary to protect her property including entering the barn. Based on the above testimony by appellees, we find that there was some evidence, more than a scintilla, on which the jury could find that Melton extended an implied invitation to Michael Page to help her protect her property. We overrule Denton’s point of error nine and so much of Melton’s point of error one as contends that there is no evidence to support a finding that Michael Page was an invitee. In contrast to the testimony offered by appellees, Melton testified that the rental agreement did not allow for their use of any of the area surrounding the barn. Her testimony revealed, however, that she never told appellees to stay off the property surrounding the barn. Melton testified that there were items of property in the barn which were valuable and many of which had sentimental value to her. She further testified, however, that when Michael Page offered to watch the barn that she told him, “No, I don’t want you to. There’s nothing in there worth saving now.” Yet she admitted that following the October 15th fire she prepared a list, for inventory purposes, of the major items of value which had been in the barn. Later, on cross-examination, in a non-responsive answer, she admitted contacting her insurance company following each of the fires. Michael Page, on cross-examination by counsel for Melton, affirmed counsel’s statement that Melton told him not to nail the barn shut because “a representative of her insurance company” was going to come out and look at the barn. Such actions, taken by Melton, are totally inconsistent with her statement to Michael Page that there was nothing of value in the barn. Melton denied asking Michael Page to help in moving the old car which was towed away around October 5th. In response to a question concerning Michael Page’s offer to nail shut the west door, she stated, “I didn’t tell him not to nail it up.” Such a statement could easily be construed as an admission that she acquiesed in such actions. According to Melton’s testimony, she expected appellees to contact the proper authorities in the event her property was vandalized. Melton testified that in 1979, a fire had been set inside the barn by children in the area. Bill McCarter testified that following this fire in 1979, Melton asked him to watch the barn for her and in fact gave him a key to the lock on the barn. Melton testified that Michael Page offered to watch her property for her and offered to watch the house under construction on Kendolf Street. She testified that her response to such offer was, “No, I don’t want you to. I have neighbors across the street who are watching that, and then there’s another man also.” Although contrary to her alleged response, we find that the evidence was sufficient to support a finding by the jury that an implied invitation was extended by Melton to Michael Page in the form of a request that he help in watching, protecting and helping to preserve her property, the barn and its contents. We find that such a finding would not be against the great weight and preponderance of the evidence. We find that the evidence was sufficient to support a finding that Michael Page was an invitee on the premises of Melton at the time he received his injuries and that such finding is not against the great weight and preponderance of the evidence. We must now determine if Michael Page’s invitee status extended into the inside of the barn. Michael Page testified that on October 15, he heard a noise out by the barn. He said that he went out to the barn and saw the west door open. He pulled the door back and went inside at which time, there was a flash explosion which knocked him to the ground. Michael Page was, therefore, inside the barn at the time he was injured. A determination of whether the scope of the implied invitation, extended to Michael Page, included his entry into the barn must depend on whether Melton could reasonably have anticipated such entry in response to the implied invitation to help her protect the barn. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 62 (1953). The invitation to protect Melton’s property did not merely cover the barn but the contents of the barn as well. Two fires had previously been set inside the barn. Under such circumstances, it would not be unreasonable for Melton to expect Michael Page to enter the barn in an attempt to catch the arsonist. We find that the evidence was sufficient to support a finding that the scope of Michael Page’s invitee status included his entry into the barn. Such a finding would not be against the great weight and preponderance of the evidence. We find that the evidence was sufficient to support a finding that Michael Page was an invitee as to the entire premises inside of and surrounding the barn at the time he received his injuries and that such finding is not against the great weight and preponderance of the evidence. We overrule Den-ton’s point of error ten and Melton’s point of error one. Melton’s point of error six contends that the trial court erred in treating storage of gasoline in sealed metal cans as an inherently dangerous condition of property that can sustain a finding of negligence and give rise to a duty to inspect, a duty to warn, or a duty to secure the premises. We will construe this point of error as a challenge to the existence of a duty owed to appellees. Denton’s point of error two contends that the court erred in rendering judgment against them in that as a matter of law the City had no legal duty toward the appellees. It is well-settled that an occupier of land owes a duty of “reasonable care” to his invitees. Rosas, 518 S.W.2d at 536. In defining this duty, the Supreme Court of Texas has adopted the Restatement (Second) of Torts sec. 343 (1965): A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. See Rosas, 518 S.W.2d at 536; and Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 454 (1972). It has been held that “the occupier of premises holds a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees, or to warn of the hazard.” J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 539 (Tex. 1968). It has further been held that “[t]he owner is charged with knowledge of any dangerous condition that a reasonable inspection would have revealed because his duty to keep his premises in a reasonably safe condition for use by his invitees includes a duty to inspect.” Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 395 (1954). See Adam Dante Corporation, 483 S.W.2d at 455; and Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex.1970). We have upheld the jury’s finding that Michael Page was an invitee on the premises of Melton. We find that Melton had a basic duty to exercise ordinary care to keep her premises in a reasonably safe condition for such an invitee. Seideneck, 451 S.W.2d at 754. We further find that such duty included a duty to inspect and a duty to warn the invitee of any dangerous or hazardous condition existing on her premises. We do not, however, find the duty owed to an invitee under the facts of this case includes a duty to secure the premises. See Nixon v. Mr. Property Management Co., Inc., 675 S.W.2d 585 (Tex.App. — Dallas 1984, writ granted). Whether or not it is negligence for an owner or occupier of land to fail to secure its premises from vandalism and intrusion is a question of fact, which might be relevant in attempting to show causation for injuries incurred by a plaintiff. In the present case, the issue of Melton’s negligence in failing to secure the barn was submitted to the jury as a question of fact, and the jury found against Melton, and that such negligence was a proximate cause of appellees’ injuries. Appellees did not, however, contend that appellants owed them a duty to secure and we find the answer to that special issue does not create such a duty. However, based on our finding that Melton owed appellees a duty to inspect the barn and warn of any dangerous or hazardous condition existing in the barn, we, nevertheless, overrule Melton’s point of error six. Denton properly points out that “any plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability.” Abalas v. Oil Development Company of Texas, 544 S.W.2d 627, 631 (Tex.1976). In furtherance of this contention, Denton attempts to set itself out as a mere bystander. Denton argues that any duty which may have been owed was merely the duty owed to a licensee pursuant to see. 18(b) of the Act. We disagree. We have upheld the jury finding that Michael Page was an invitee on the premises of Melton. Section 3 of the Act states that liability will exist “under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.” TEX.REV.CIV.STAT.ANN. art. 6252-19, sec. 3 (Vernon 1970), as amended by ch. 50, sec. 1, 1973 Tex.Gen.Laws 77. (Emphasis added.) We have also previously found that sec. 18(b) of the Act (premises defects) does not apply to this cause of action. Assuming the City of Denton were a private person, we must determine whether or not it would owe a legal duty to the appellees under the circumstances of the present case. Appellees’ cause of action against Denton is based on a theory of vicarious liability. Appellees pled and attempted to prove that the negligence of an individual, Bob Hagemann, Fire Marshall of the City of Denton, was a proximate cause of their damages. There were no allegations that the fires were negligently extinguished or that the Fire Department failed to respond promptly to the fires. Any legal duty owed to appellees must be predicated upon the actions and responsibilities of the Fire Marshall, Bob Hagemann, in acting in his capacity for the City of Denton. We must determine whether Bob Hagemann, if he had been acting as a private person, would have owed a duty to Page, and therefore been liable for the negligent performance of that duty. If Denton owed a duty to appellees, such duty would arise out of the relationship existing between Melton and the City of Denton. Melton was undisputably the owner and occupier of the premises. The Fire Department of the City of Denton entered the premises to perform a function, the extinguishment and control of fires. Directly connected with this function were the responsibilities and duties delegated to its employee, Fire Marshall Bob Hagem-ann. Hagemann’s deposition testimony states that “[t]he City charters the Fire Marshall to prevent fires in the City of Denton, and you can do that three ways, through three vehicles, which is prevention, inspection, investigation and education.” In the same deposition testimony, Hagem-ann later stated that “[t]he Fire Department is divided up into two sections, or three sections: Prevention, which is mine. I’m over that. I have two employees. I supervise their work.” By Hagemann’s own testimony, his duties and responsibilities included the prevention of fires. In general, we believe that the duties and responsibilities performed by Hagemann were for the health and safety of all of the citizens of the City of Denton. In the immediate context of the present case, Ha-gemann was acting to prevent future fires in Melton’s barn. It can fairly be said that Hagemann undertook the job of preventing fires in Melton’s barn. He performed this job through the activities of inspection and investigation. A close analogy can be made between the relationship of the Fire Department (through Hagemann) to Melton and that of an independent contractor to an owner or occupier of land. It is well-settled that an independent contractor owes the same duty of care to invitees as the owner or occupier of premises themselves would owe to such invitees. Thomas v. Oil & Gas Building, Inc., 582 S.W.2d 873, 879 (Tex.Civ.App — Corpus Christi 1979, writ ref'd n.r.e.). We perceive no appreciable difference between the duty owed and the job to be performed by Hagemann on Melton’s premises and that which an independent contractor engaged to repair such premises would owe to an invitee later using the same. Because the Fire Department and Hagemann were actively engaging in the performance of their duties and responsibilities while on Melton’s premises, we find that they did not occupy the position of an innocent bystander. We find that Denton, acting through its employee Hagemann, owed the same duty of care to Melton’s invitee, Michael Page, as Melton (a private person) herself owed. We overrule Denton’s point of error two. Denton’s points of error five and seven contend there was no evidence to support the jury’s affirmative answer to Special Issues No. 3 and 6 respectively. Points of error six and eight contend that such answers were against the great weight and preponderance of the evidence. Special Issue No. 3 asked: “Do you find that Fire Marshall Bob Hageman [sic] knew, or in the exercise of ordinary care should have known that such gasoline was being stored there?” The jury answered “Yes”. The jury answered “Yes” also to Special Issue No. 6 asking: “Do you find that Fire Mar-shall Bob Hagemann was negligent in failing to inspect the storage house in such a manner as to determine if its condition was dangerous?” We have found that Denton owed the same duty of care to Michael Page as that owed by Melton. Melton had a duty to inspect for unreasonably dangerous conditions existing in the barn and to warn her invitee of the hazards. In reviewing the evidence we find Hagemann entered Melton’s premises for the specific purpose of inspecting the premises and investigating the fires in order to prevent future fires. The very nature of the job to be performed by Hagemann gave rise to a duty to inspect the barn and to either correct or warn of any hazardous or unreasonably dangerous condition existing in the barn. Hagemann’s testimony, reveals that he was interested in finding a can or container which might have held the kerosene used to start the fire on September 30. His deposition testimony states he entered the barn, following the September 30th fire, and looked around. At this time, he claims to have noticed paint cans and all kinds of little cans. Yet there is no indication he checked any of these cans for kerosene even though he admitted such cans could have contained combustible liquids. Ha-gemann further testified that he returned to the barn on the morning of October 1, the day after the first fire. He stated one of the purposes of this visit was to check the area for any discarded containers and further that his search for such cans or containers was important as an attempt to find evidence which could be linked to the fire. On cross-examination, he testified that on the morning of this search for containers, he did not look inside the barn. Later this day two other fires occurred. Hagemann testified that he next entered the barn following the two fires on October 1. He again inspected the inside of the barn but found no empty containers which may have contained kerosene. Hagemann testified the only area of the barn he inspected was the west end and he never inspected the east end of the barn. He further testified that when he inspected the barn on October 1, he did not look for any kind of combustible liquid because, “[i]t didn’t really impress me that much to be— that much important .... ” This in spite of the fact that he knew the fires of September 30th and October 1st were set with kerosene and after having searched for some type of can or container, and having seen numerous little cans. Based on Hagemann’s own testimony, we find there was some evidence, more than a scintilla, on which the jury could base their findings that Hagemann knew, or in the exercise of ordinary care should have known, that gasoline was being stored in the barn and he was negligent in failing to inspect and determine the dangerous condition of the barn. We overrule Denton’s points of error five and seven. Hagemann testified that following his inspection of the barn on the night of October 1, he did not re-enter the barn until his inspection following the fire on October 15. Following the last fire on October 1, Hagemann testified he remained nearby, watching the barn until around 1:00 a.m. He further testified he returned to the neighborhood prior to October 15, in order to talk to some of the neighbors and view the barn. He admitted that it was likely the arsonist would attempt to set the barn on fire again following October 1. When Hagemann arrived at the barn on October 15, he detected the smell of gasoline in and around the barn. He found five-gallon cans scattered throughout the inside of the barn and some on the outside of the east side of the barn. Those cans that were unopened contained gasoline. There were at least ten of these five-gallon cans found by Hagemann and one picture, admitted as evidence at trial, shows thirteen of these cans. Hagemann testified that during his only two inspections of the inside of the barn on September 30 and October 1, he never saw these cans and the first time he saw the cans was on October 15. In defense of his failure to find the cans, Hagemann stated that “I would not know what was being stored in that shed unless someone called and complained about it.” Yet there had been three fires set in the barn prior to October 15, and at least two of these were set by using kerosene. He had admitted that it was important to him to find a container which held the combustible liquid but, he never searched for such a container inside the barn and he never searched the east end of the barn prior to October 15. Bill McCarter testified that following the very first barn fire in 1979, he expressed to Hagemann his concern about the hazard caused by paint and paint thinner which was stored in the barn and that he reurged these concerns prior to October 15, 1981. McCarter also stated that he urged these concerns to Melton and asked her to remove them. Hagemann had testified that he never saw the cans prior to October 15. Ann Richardson, another neighbor who lived on Lindsey Street, testified that she walked through the barn on the morning of October 2. She testified that she entered the barn through the east door. While looking through the inside of the barn, she saw several large cans amidst all the other things that were in the barn. She identified one of the cans admitted as evidence at trial as looking like those she saw in the barn on October 2. Hagemann, Melton and another fireman, Charles Myers, all testified that a person could not enter through the east door prior to October 15. Bill McCarter, however, testified that during the fires on October 1, the firemen entered the barn through the east door and that following October 1, the east door was hanging ajar and could be opened. As stated above, following the fires of October 1st, Hagemann admitted that it was likely that the arsonist would try to set the barn on fire again. Hagemann also testified that: “If I had known there was gasoline in the building, if I had known this prior to October 15 I would probably have had it removed.” He further stated, “I would have asked the occupant to remove it, but the point is: It’s not as much for the health and safety of the neighborhood as it is when I was afraid the arsonist would find it and use it. Then it would become a hazard to the health and safety of the neighborhood.” Unfortunately, this is exactly what occurred on October 15, which occurrence resulted in the injuries sustained by Michael Page. We find that the evidence was sufficient to support the jury’s findings that Hagem-ann knew, or in the exercise of ordinary care should have known that gasoline was being stored in the barn and that he was negligent in failing to inspect and determine the dangerous condition of the barn. We find that such findings are not against the great weight and preponderance of the evidence. We overrule Denton’s points of error six and eight. Denton’s point of error three contends that as a matter of law there was no proximate cause connecting Denton’s alleged negligence to the appellee’s injuries. Point of error four contends that the jury’s findings of proximate cause were against the great weight and preponderance of the evidence. These points of error challenge the legal and factual sufficiency of the evidence to support the jury’s findings in Special Issues Nos. 5 and 7. Melton’s point of error two contends that failure to inspect could not be a proximate cause of appel-lee’s injuries, and point of error three contends that failure to warn appellees could not be a proximate cause of appellee’s injuries. By point of error four she contends that failure to secure the premises could not be a proximate cause of appellee’s injuries. We will construe Melton’s points of error as being a challenge to both the legal and factual sufficiency of the evidence to support the jury’s findings in Special Issues Nos. 8, 9, 10, 11, 13 and 14. We have already discussed and upheld the jury’s finding in Special Issue No. 3, that Hagemann knew, or in the exercise of ordinary care should have known that gasoline was being stored in the barn. In Special Issue No. 4, the jury found that Hagemann was negligent in failing to warn appellees of the condition of the barn with gasoline being stored there. Denton has not challenged the jury’s finding in Special Issue No. 4. Special Issue No. 5, asked: “Do you find that such failure was a proximate cause of the occurrence in question?” The jury answered in the affirmative by stating, “Yes”. We have also discussed and upheld the jury’s finding in Special Issue No. 6, that Hagemann was negligent in failing to inspect the barn in such a manner as to determine if it’s condition was dangerous. Special Issue No. 7 then asked: “Do you find that such failure was a proximate cause of the occurrence in question?” The jury again answered affirmatively by stating, “Yes”. The jury found in Special Issue No. 8 that Melton was negligent in failing to inspect the barn in such a manner as to determine the existence of gasoline being stored there. Special Issue No. 9 asked: “Do you find that such failure was a proximate cause of the occurrence in question?” In answer to Special Issue No. 10, the jury found that Melton was negligent in failing to adequately secure the barn from vandalism and intrusion. Special Issue No. 11 asked: “Do you find that such failure was a proximate cause of the occurrence in question?” The jury found in Special Issue No. 12 that Melton knew, or in the exercise of ordinary care should have known that such gasoline was stored in the barn and in Special Issue No. 13, it was found that Melton was negligent in failing to warn appellees of the condition of the barn with gasoline being stored there. Special Issue No. 14 asked: “Do you find that such failure was a proximate cause of the occurrence in question?” The jury answered the proximate cause question in Special Issues Nos. 9, 11 and 14 affirmatively by stating, “Yes”. As stated by the Supreme Court of Texas in McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980) (citations omitted): Proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact. Both elements must be pre