Lizzy Plug v. SXSW Holdings, Incorporated
903 F.3d 522
5th Cir.2018Background
- At SXSW 2014, an intoxicated driver, Rashad Owens, evaded police, drove through festival barricades on Red River Street, and killed four people, including bicyclist Steven Craenmehr. Owens was later convicted of capital murder.
- SXSW obtained a City right-of-way permit to close Red River Street (800–1000 blocks) but the City-approved traffic-control plan left the 1000 block open and required traffic controls to follow that plan.
- SXSW and the City placed Type III barricades and posted police officers; plaintiffs allege water-filled barriers should have been used and bring wrongful-death claims.
- Plaintiffs sued SXSW entities and later added the City, pleading negligence (ordinary and gross), premises liability, negligence per se, implied warranty, public nuisance, negligent undertaking, and negligent hiring; later briefing abandoned some claims.
- The district court dismissed for failure to state a claim; the Fifth Circuit affirmed as to SXSW (no control of the open 1000 block; no negligence per se) and affirmed dismissal as to the City (no legal duty because Owens’s criminal act was not foreseeable; governmental immunity analysis applied on appeal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SXSW owed a duty (negligence / premises liability) | SXSW had a right-of-way permit making it temporary occupier/control of Red River (so it owed a duty) | Permit conditions and City traffic plan show SXSW lacked control of the 1000 block (City retained control) | Dismissed: SXSW lacked control of the open city street, so no duty |
| Whether plaintiffs pleaded negligence per se based on traffic-control manuals | Manuals (MUTCD, Tx MUTCD, City manuals) establish a standard requiring stronger barriers (water-filled) | Manuals do not mandate water-filled barriers; Type III barricades are permitted | Dismissed: no plausible allegation of violation of a codified/penal standard (no negligence per se) |
| Whether public-nuisance and implied-warranty claims survive | Plaintiffs contend nuisance and implied warranty parallel negligence failures to secure festival area | These claims are duplicative or not recognized under Texas law | Dismissed: public-nuisance depends on negligence; implied warranty not a valid premise-safety cause under Texas law |
| Whether the City owed a duty or is immune (foreseeability / governmental immunity) | City knew SXSW risks (statistics, prior incidents, pre-festival planning) so harm was foreseeable and immunity is waived by Sec.101.021(2) | Owens’s criminal act was not specifically foreseeable under Timberwalk; traffic control and other functions are governmental (immunity) | Affirmed: no duty because Owens’s extreme criminal act was not sufficiently foreseeable under Timberwalk; waiver not triggered (governmental immunity applies) — (dissent would have found pleadings sufficient) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
- Timberwalk Apartments, Partners v. Cain, 972 S.W.2d 749 (Tex. 1998) (foreseeability test for third-party criminal acts; recency/proximity/frequency/similarity/publicity factors)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (narrow foreseeability rule when owner has actual/direct knowledge of imminent criminal conduct)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (distinguishing governmental vs. proprietary functions and immunity principles)
- Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9 (Tex. 2008) (analysis of similarity and foreseeability of prior crimes)
- Dixon v. Hous. Raceway Park, Inc., 874 S.W.2d 760 (Tex. App. 1994) (duty of premises owner arises from control; no duty for injuries on adjacent public road)
- Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215 (Tex. App. 1994) (cities typically own/control streets; limits on private duty to control public streets)
- Mo. Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99 (Tex. 1977) (negligence per se requires legislative declaration prohibiting act)