> 975 S.W.2d 803
Court of Appeals of Texas,
Linda S. ELLER, Appellant,
NATIONSBANK OF TEXAS, N.A., Appellee.
Sept. 1, 1998.
Bank customer sued bank for breach of contract, negligence, breach of its duty of good faith and fair dealing,
implied warranty of habitability, and deceptive trade practice after discovering money was missing from safe-deposit box
she had leased from bank.
The County Civil Court at Law, Harris County, Tom Sullivan, J., granted summary judgment
The Court of Appeals, Quinn, J., held that: (1) language of release signed by customer was
sufficient, as matter of law, to evince specific intent to release bank from its own negligence; (2) genuine issue of fact as
to whether bank misrepresented that safe-deposit box was safe and secure precluded summary judgment for bank on
deceptive trade practices claim; and (3) bank owned no duty of good faith to customer.
Affirmed in part, reversed in part, and remanded.
Dodson, J., filed concurring opinion.
Before DODSON, QUINN and REAVIS, JJ.
Linda S. Eller (Eller) leased a safe-deposit box from NationsBank of Texas, N.A.
After discovering that approximately $18,000 and four silver dollars were allegedly missing from it, she sued the bank
for breach of contract, negligence, breach of its duty of good faith and fair dealing, implied warranty of habitability, and
deceptive trade practice.
Nations eventually moved for summary judgment, which the court awarded to it.
judgment, Eller appealed, contending in her sole point that the court erred in granting the motion.
We reverse in part and
affirm in part.
To obtain the safe-deposit box, Eller executed a lease agreement with Nations on December 26, 1990.
other things, the document described the relationship of the parties and contained the following provision:
The lessor has no possession or custody of, nor control over, the contents of the Box, and Lessee assumes all
risks in connection with the depositing of such contents therein.
The annual rental is solely for rental of the Box, and
there shall be no liability on the part of the Lessor for loss of, or injury to, the contents of the Box from any cause
whatsoever, including, but not limited to, fire, flood or other force majeure, deterioration of the contents of the Box,
including loss of data on magnetic tape, disc or other media, and criminal acts or negligence of any person, corporation or
An unauthorized opening shall not be presumed or inferred from proof of partial or total loss of contents.
is expressly understood and agreed that Lessor is not an insurer of the contents of Boxes.
Insurance of contents is the sole
responsibility of Lessee.
(emphasis in original).